Comments on the Kampala Declaration.

Dissel, A. (1996). Comments on the Kampala Declaration. In Prison Conditions in Africa, Report of a Pan-African Seminar Kampala, Uganda, 19-21 September.

 

In Prison Conditions in Africa, Report of the Pan-African Seminar, Kampala, Uganda, pp. 99-118, 19 – 21 September 1996.

Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.

Between 19-21 September 1996, 133 delegates from 47 countries, including 40 African countries, met in Kampala, Uganda. The President of the African Commission on Human and Peoples' Rights, Ministers of State, Prison Commissioners, Judges and international, regional and national non-governmental organisations concerned with prison conditions all worked together to find common solutions to the problems facing African prisons. The three days of intensive deliberations produced the Kampala Declaration on Prison Conditions in Africa which was adopted by consensus at the closure of the conference.

Prison Conditions

The human rights of prisoners should be safeguarded at all times and non-governmental agencies should play a special role in this respect, that is recognised and supported by the authorities.

Most African countries are signatories of the African Charter on Human and People's Rights. They also subscribe to various United Nations instruments regarding human rights, some of the most important being, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Some of the principles inherent in these instruments are also incorporated into domestic law through legislation and the Constitutions of individual countries.

These instruments all recognise that every human being has certain inviolable rights, such as the right to dignity; the right of non-discrimination; the right to life, liberty and security of person; the right to be equal before the law and to have equal protection from the law. These rights are applicable to all individuals including prisoners.

Prisoners and other people deprived of their freedom are recognised as particularly vulnerable and therefore in need of special protection. Deprivation of freedom is one of the most severe infringements of a person's rights and therefore needs to be strictly regulated. Because prisoners and detainees are usually locked away from public scrutiny and are dependant on the prison administration for their everyday needs, as well as for their own protection, they are vulnerable to abuse and maltreatment. Therefore certain rights have been derived which protect these individuals. These include the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment; the right not to be subjected to arbitrary arrest, detention or exile; and the right to be subject to due process of law. These are rights which can never be restricted or limited in any way.

It is incumbent on States to ensure that human rights are extended to their citizens in all respects. However, critical and independent monitoring by components of civil society, such as non-governmental organisations (NGOs) shall assist governments in monitoring the situation and are crucial to ensure that human rights are being protected. NGOs are independent of the government and of the prison administration and as such are able to provide an unbiased assessment of the treatment meted out to vulnerable groups.

A basic principle to safeguard the human rights of individuals deprived of their liberty is to create a situation of openness. Prisons and other places of detention should be open to outside scrutiny and the people in custody should have access to the outside world. NGOs should be in a position where they can monitor human rights in prisons. In order to do this, the government has to recognise the important role of NGOs and make it possible for these organisations to have access to prisons and to prisoners, as well as to information. Prisoners also need to be able to communicate with organisations which exist externally to the prisons.

Prisoners should retain all rights which are not expressly taken away by the fact of their detention.

Human rights are regarded as fundamental to human existence and cannot be taken away by legal justification. The debate over the years has centred around the question of whether prisoners forfeit all their civil rights except those granted by the prison establishment as privileges, or whether they retain all their civil rights except those expressly forfeited as a result of their imprisonment. An interpretation of the human rights instruments and modern law leads us to believe that the latter view is the correct one.

The question then becomes an inquiry as to which human rights are restricted as a result of imprisonment, and to what degree they should be restricted. The basic principle should be that the rights are limited only to the extent necessary by virtue of the fact of their imprisonment.

Certain rights may be obviously limited by virtue of a person's detention or imprisonment, for instance, the right to liberty, since a person under lawful detention has had his liberty denied. However, this should be interpreted restrictively. The deprivation of liberty is the person's punishment for committing a crime. The person's rights should not be further infringed. The adverse effects of imprisonment should be reduced so that the circumstances in prison resemble those outside as much as possible.

Other rights which may be restricted are the rights to freedom of association; freedom of expression; freedom of assembly; and freedom of movement. These rights may be restricted, not as a form of punishment for the inmate, but as a means of ensuring smooth administration, security, and good order of the prison or place or detention.

A person's right to freedom of association may be restricted in that they may not be able to associate as freely with outsiders as they had formerly done. Inside of prison their association with certain categories of prisoners may also be restricted. For instance, in order to protect child prisoners, it is necessary to segregate adult from child prisoners and to limit the extent of their interaction. Similar provisions would relate to women and male prisoners. The rights to form associations within the prison may also be limited taking into account the requirements of security and good order in the prison.

Freedom of expression poses interesting challenges for the administration. A prisoner should be allowed the opportunity to speak to the media, to families and to organisations about the conditions in prison, and should be afforded the opportunity to do so. Prisoners should also be allowed to complain to the authorities or to make statements about their treatment or conditions. But in the interests of the security of the prison, inflammatory statements may be restricted.

Prisoners should have living conditions which are compatible with human dignity.

The International Covenant on Civil and Political Rights states that:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. (Art. 10(1))

The conditions under which prisoners are accommodated are one of the major factors which determine a prisoner's state of mind, self esteem and dignity. How and where a person eats, sleeps and uses the toilet have enormous effect on the person's mental and physical well being. In addition to violating a person's dignity, extremely poor conditions may in addition constitute cruel, inhuman or degrading treatment, or may be injurious to a prisoner's health. How does one determine whether the conditions in a particular prison are in accordance with the principle of human dignity?

The Standard Minimum Rules for the Treatment of Prisoners (SMR) give detailed guidelines on what conditions are deemed to be appropriate, and they are deemed to be minimum standards below which a prison should not fall. Yet many countries in Africa have highlighted the enormous problems of overcrowding and restricted budgets which hamper the implementation of the Rules. For instance, although the SMR indicate that prisoners should be accommodated in single cells, this is unrealistic in countries where accommodation has been designed to provide communal facilities.

We should then ask what is the minimum standard of dignity which should be met when we accommodate prisoners? In principle, prisoners should not be accommodated under worse conditions than those which are prevalent in the community from which they come, but should rather, in so far as possible, resemble the circumstances outside of prison.

There are aspects of accommodation over which the prison has more control, and which can be regulated without huge expenditure, issues such as ensuring basic standards of cleanliness and hygiene. Prisoners should be provided with the means to keep themselves and their living areas clean. Improvements can be made in the conditions through commitment and political will.

In regard to segregation of different categories of prisoners coming from different backgrounds, as some are more aggressive than others, and in order to avoid abuse of vulnerable prisoners by the more powerful, careful selection of prisoners sharing communal accommodation is important.

The SMR recommend that prisoners be allowed at least one hour of exercise per day. However, in situations of overcrowding, spending more time out of the cell, or out-of-doors, is a low cost way of temporarily alleviating the problem.

Where toilets are situated in the cell, they should be screened from the sleeping area, to provide prisoners with privacy. Prisons using the bucket system should ensure that these are regularly emptied and cleaned.

Conditions in which prisoners are held and the prison regulations should not aggravate the suffering already caused by the loss of liberty.

The detrimental effects of imprisonment should be minimised so that prisoners do not lose their self-respect and sense of personal responsibility.

Something has already been said about imprisonment being the punishment of loss of liberty. A prisoner should not be further punished whilst in prison, and the administration should ensure that all steps are taken to safeguard against this happening. Human dignity should be assured, and the inmate should not be subjected to cruel, inhuman or degrading treatment or punishment.

The purpose of imprisonment is also to ensure the safety of the public. This occurs whilst the person is incarcerated, but at the end of the sentence, most prisoners will be released into the community. It must be recognised that the social and psychological negative effects of imprisonment must be limited. It is therefore in the interests of justice that imprisonment helps perpetrators to prepare for a crime-free life on release. To this end the prison should encourage the offender to address the problems of his offending behaviour and make available the opportunities for doing so. But the prison should also be geared towards assisting the prisoners to return to the community to lead a socially responsible and acceptable life.

It is important, both through the programmes it runs and through its relationship with the offender, that the prison increases the opportunities for prisoners to exercise responsible choices about their lives in prison and after their release.

Prisoners should be given the opportunity to maintain and develop links with their families and the outside world, and in particular be allowed access to lawyers and accredited para-legals, doctors and religious visitors.

Prisoners are removed from society in order to serve their sentences, and at the end of their time, they will return to society. Therefore it is important that conditions are created which facilitate the smooth transition from the prison to the community. Pre-release programmes in the prison which seek to enable the prisoner to confront and deal with the challenges facing him on release are crucial. Another mechanism is a system of gradual release through weekend paroles, or being transferred to a prison which allows for greater interaction with the family and community prior to release.

Maintenance of contacts with the outside world during the period of imprisonment forms an important part of a prisoner's reintegration, where families often play the most important role. The prison should facilitate steps to maintain contact with family and friends. Substantial and regular visiting which allows for a better quality of interaction is important.

Many prisoners are held in prisons some distance from their families, and travelling costs to the prison can be onerous. Correspondence and telephone calls can be an important means for the prisoners to maintain contact. Restrictions or censorship of letters should be kept to a minimum and used only in extreme circumstances. In countries which have a reliable telecommunications network, such systems should be introduced into the prison for prisoners' use.

In order to maintain contact with families, the prison must allow the prisoner an opportunity to inform his family members about any transfer to another institution. In the case of juveniles, the prison should take the step of contacting the family themselves on admission to prison and upon any transfer.

Regular contact with outside groups should also be encouraged. There are many community-based organisations, welfare structures and church groups which are willing to provide services for prisoners, and which serve as a crucial link to the community.

Lawyers

Contact with a lawyer may be one of the foremost protections against abuse of human rights, but it is also a recognition of the prisoner's existence as a legal entity in his own right.

According to SMR, a remand prisoner is allowed to receive visits from a lawyer for the purposes of his defence. He should also be allowed access to writing material and be able to hand the lawyer confidential communications. Interviews with lawyers should be out of hearing, but may be in sight of prison officials.

Other instruments extend the rights to be visited by lawyers to all people who are detained or imprisoned, and extend them the right to communicate and consult with a lawyer without delay, interception or censorship and in full confidentiality. (UN Basic Principles on the Role of Lawyers). It is implied that prisoners may consult lawyers not only about their cases for which they are in prison, but also about a whole range of legal matters.

Lawyers are expensive and frequently beyond the means of the average prisoner. In order to guard against the situation where prisoners are prevented from accessing legal advice due to the prohibitive costs of private lawyers, prisoners should be allowed contact with accredited para-legals.

Some countries have a system whereby para-legals are trained by a central body, or using a centralised curriculum and receive accreditation on completion of the course. In other countries para-legals are merely unqualified people working for organisations and dispensing legal advice. In such cases, the organisations which work with prisoners should meet with the prison authorities to establish a working relationship and the right to visit prisoners.

Doctors

Often due to their conditions and state of deprived liberty, prisoners are more vulnerable to health concerns than are people outside of prison. The prison is obliged to provide medical treatment to prisoners. SMR 25 (1) provides for a medical officer who shall care for all sick prisoners. This implies that a qualified medical doctor has at his or her disposal a well equipped surgery and treatment room with the usual facilities, and that he can treat prisoners as he would normal patients. They should act professionally at all times and prisoners should receive the same level of treatment as would be received by free individuals.

A prisoner should have access to the doctor or medical personnel at all times and should never be required to wait for any length of time for treatment.

Prisoners should also be entitled to receive treatment by medical practitioners of their own choice and at their own expense.

Religious Visitors

Freedom of religious belief is a fundamental right, so spiritual assistance and support should always be available. The Rules provide that the prison should appoint a religious advisor for the majority religion in that prison, and that regular services should be held and pastoral visits made (SMR 41). In addition, no prisoner should be denied access to a representative of any religion.

In so far as is possible, every prisoner should be allowed to satisfy his religious life (SMR 42). This should be interpreted to allow for group worship. This may have particular bearing on prisoners belonging to minority religions in the prison. The prison must be careful not only to allow for the practices of the dominant religion, but should also take into account the needs of any minority religion in the prison. In addition, the right to non-discrimination prohibits the prison from preventing access to religious practices of some groups, and obliges its administration to protect some religious groups from discrimination by other religious groups in the prison.

A person should be entitled to practice his religion without censure except where the extreme nature of that conviction may prejudice anyone else's religious freedom or interfere with their safety.

Prisoners should be given access to education and skills training in order to make it easier for them to reintegrate into society after their release.

Education and skills training is an important element in human development, particularly for prisoners who often represent an uneducated and unskilled group of individuals. The education and training should be aimed at equipping prisoners for their release into society. They should be allowed the opportunity to develop the skills necessary to function in the world, as well as skills to earn a viable living. To this end, educative programs should be broad-based to meet differing prisoners needs. Basic literacy may be important, followed by primary and secondary education. Depending on the educational policies existing in the country, basic education should be provided to prisoners free of charge. A prisoner should be allowed to continue with tertiary studies at his or her own expense.

Other educative programs could look towards meeting some of the basic life skills of prisoners, such as operating a bank account, relationships with family members, or dealing with personal feelings, such as aggression.

Many ex-prisoners experience discrimination in the job market, particularly if they are unqualified. The time in prison can be well spent learning a trade or technical skill which is compatible with the prisoner's capabilities as well as with the job market outside of prison. In places of high unemployment, many prisoners may benefit from learning how to start and run their own small business, or taught to make items which can be sold at local markets.

Any qualification obtained in prison should preferably be granted by an organisation outside of the prison so that the certificate does not bear the distinguishing mark of imprisonment.

Special attention should be paid to vulnerable prisoners and non-governmental organisations should be supported in their work with these prisoners.

Delegates felt that certain groups of prisoners are particularly vulnerable and special measures should be taken to protect them. Such groups include women and juveniles, the aged, the ill, non-nationals and prisoners who are HIV positive or suffering from AIDS.

The risk of sexual or physical abuse and harassment is particularly severe in relation to women and young prisoners, and this imposes an obligation to protect them. As a general principle, women and juvenile or child prisoners should be accommodated in institutions which are entirely separated from male and adult prisoners (SMR 8). At the very least these prisoners should be accommodated in separate sections. As both these groups often form a small number of prisoners it becomes difficult for the prison to provide them with the full range of facilities and services as they would adult males. Where it is impossible to provide separate facilities, these groups should be allowed separate access to facilities shared by the men.

If, at any time, women or juveniles share training or work facilities with men, this should occur under the strict supervision of carefully selected and trained staff.

Prisoners who are mentally or physically ill or who are aged require special protection against abuse by authorities or fellow prisoners. Separating prisoners is not necessarily the best option as it may lead to situations of embarrassment or the need for protection. A more feasible option may be to accommodate such prisoners with smaller groups of normal prisoners who are carefully selected.

The prison should provide the means for the special medical or social needs of such prisoners. For instance, a deaf prisoner should be equipped with the necessary hearing aids, and if possible should be accommodated with people who are able to communicate with him.

The treatment of HIV positive and AIDS prisoners bears special mention. HIV is a transmissible infection and potentially terminal, so it is often believed that all prisoners should be HIV screened and those found positive segregated from other prisoners. This may be a highly discriminatory practice which also infringes on a prisoner s right to privacy and dignity. The World Health Organisation Guidelines on HIV Infection and Aids in Prisons recommends that infected prisoners should not be segregated from the general community, nor should they be restricted in any way more than necessary. Many prison regimes may still feel that it is necessary to prevent such prisoners from working in prison jobs which present a threat to other prisoners, such as kitchen work or as medical assistants.

It is important that the issue of communicable diseases is dealt with through educating the staff and prison community about the risks and effects of infection. They should also be taught about ways to prevent the spread of AIDS. The fact that sexual activity is prevalent in many prisons cannot be ignored. Rather, the prison should make condoms available to prevent the further spread of AIDS.

Non-governmental organisations can play an important role in running educative programmes in the prison. Again, because of their independence, prisoners are more likely to be open and communicate about their fears with an outside grouping than they are with the prison authorities.

All the norms of the United Nations and African Charter on Human and People's Rights on the treatment of prisoners should be incorporated into national legislation in order to protect the human rights of prisoners.

By incorporating the norms into national legislation, the individual governments would be making a clear commitment to implementing human rights in respect of prisoners. Having the norms more easily accessible not only to lawyers, but to staff members of the prison departments, would ensure that they are applied at the local level. The national legislation should also be available for prisoners to scrutinise in order to ascertain their rights.

Remand Prisoners

The Kampala Declaration points to the overwhelming problems of overcrowding and long terms of detention of remand prisoners. Neither of these problems is the result of action by the prison services, but are dependent on the efficiency of the police and the courts. Delays in the prosecution of offenders impacts on the rights and life of the offender, as well as on the victims and witnesses involved in the crime.

In respect of the police, delegates spoke with concern of the slowness or lack of investigation of cases by the police, which means that cases are often remanded in order to give the police more time to investigate. This is an untenable situation. Although it is recognised that police routinely have large case-loads, there are many cases where no effort is made to investigate at all. The police should be required to investigate cases promptly and thoroughly. When the police or prosecution request a further remand the courts should request a report on the status of the investigation and the causes for the delays. Prison authorities should have statutory powers to release any prisoner held unlawfully.

A further problem in relation to the police and the prosecution is the over reliance on the use of pre-trial detention as a means of securing the attendance of the accused in court without sufficient enquiry into whether that person could be released on bail. The development of a remand culture was described in many countries in Africa where the prosecution's attitude appears to be that when a person, any person, has been arrested for a crime, or in order to appease the public's sense of justice, the risk should not be taken of releasing the person from custody. In succumbing to public pressure, the courts do so at the expense of the human and constitutional rights of the suspect. The basic question for the courts to consider in remanding a person into custody is whether there are grounds for interfering with the suspect's constitutional right not to have his/her liberty interfered with.

Defence lawyers can usually be relied on to challenge the courts on behalf of their clients, but unrepresented accused find themselves in a more difficult predicament. In such cases, the courts should enquire into, and consider any grounds for refusing to release the accused. Should there be no reason to hold the accused in custody, the court could then look at making an appropriate order to secure the accused person's attendance in court. In the absence of grounds for denying bail, courts may be tempted to set, as surety for attendance, an unrealistic amount effectively making sure the accused is held in custody awaiting trial or sentence. Public information and education are part of the solution to remedy this, as the public is usually supportive of the no-release policy.

In addition, many accused are not aware of their right to request bail, nor of their right to challenge the amount set by the court. Legal aid assistance should be made available to unrepresented accused. Training correctional services staff to advise accused prisoners in such matters is one possibility, although the issue of trust may be of some concern to prisoners.

The denial of bail becomes particularly problematic when the duration of the pre-trial period, or the actual trial is unduly long. Added to the investigative problems mentioned above, is the problem of the overload of the court roll, and lack of resources for court officials. Options should be investigated such as in Uganda, where the courts are obliged to release an accused if the case has not been brought to trial within a certain period of time. This is one way in which the case may be pushed through the criminal justice system.

Frequently the remand sections of any prison are clogged with people who are charged with relatively minor offences. Here particularly courts should be mindful of the rights of the accused. In some cases, the situation may be alleviated if there are options whereby an accused person can be diverted from the criminal justice system completely.

South Africa has been experimenting with diversion for the past few years and has reported some success. Under this system a person who has committed a non-serious offence, and who has acknowledged guilt or responsibility for the act, can be diverted from the courts. The prosecution evaluates the case and suspends the prosecution, or withdraws the case on certain conditions. These may include conditions that the offender attend some kind of rehabilitative program which deals with the problem of offending, payment of compensation or other form of restitution. If the offender successfully completes the program, the prosecution is notified and withdraws the case.

This approach is useful in that it deals with the problem of alleviating clogged court rolls, and also tackles the problem of crime with the offender in a restorative and constructive way.

Conditions for Prisoners Awaiting Trial

A fundamental principle of remand prisoners is their right to be considered innocent until proven guilty. Therefore their detention should only serve the purpose of ensuring the protection of the community and securing the attendance of the accused at the trial. Remanding an accused in custody should not be used as a means of punishment. The regimes for untried prisoners should interfere with their rights as little as possible.

In practice however, remand prisoners frequently experience worse conditions and treatment than any other category of prisoners. Given that some innocent people are held in custody, and that remand periods are often long, prison regimes must be mindful of discriminating against these prisoners by not extending them the full range of services and programs available to sentenced prisoners. Efforts must be made to ensure that the accommodation standards and other conditions do not fall below those of convicted prisoners.

Role of the Judiciary

The judiciary have an important role to play. Firstly they should be aware of the problems caused by delays in trials and should avoid unnecessary postponements in their own courts, but they should also play a role in pressuring the lower courts to complete their trials within as short a time as possible, without interfering with the course of justice. Secondly, they have the important role of monitoring the conditions of remand prisoners, through regular inspections of the institutions in which they are held. The judiciary should also question the accused, or allow them the opportunity to express any grievance they have with their detention. In this way, abuses or even torture of detainees can be monitored and prevented.

NGOs can also monitor the conditions of prisoners through regular visits, and through monitoring of court delays.

Prison Staff

A well-trained and committed staff is necessary to carry out the functions of a prison having regard to human rights principles. A prison department should nurture their staff development through training and career pathing.

There should be a proper career structure for prison staff.

Prison staff are a professional body with clearly defined tasks and responsibilities. In order to develop within the job, staff members should be given the opportunity for promotion and the development of a career within the service. Different levels of staff with differing functions need to be developed, and information passed on to staff so that they can aim towards graduating to a higher level, usually with greater responsibilities.

Promotion to another level should occur in terms of guidelines developed by the department and training should be provided for each level of career advancement. Staff should be carefully selected for promotion taking into account standards of professionalism, competency, and suitability for the job.

All prison personnel should be linked to one government ministry and there should be a clear line of command between central prison administration and the staff in prisons.

Delegates to the conference pointed to the confusion which arises when members are responsible to different government ministries or to different agencies within one ministry. The suggestion was adopted that all prison personnel should be responsible to one ministry and that there should be clear lines of command from a central prison administration. National legislation should make provision for this and also for the development of rules and procedures which may be determined by the central authority. Hopefully, this would ensure that staff are then expected to implement policy emanating from one source which is consistent with the policy of the ministry.

A clear line of authority is also an important means of accountability. Government, staff, and members of the public know to whom staff are responsible, and to whom they should be held accountable for their actions.

The State should provide sufficient material and financial resources for staff to carry out their work properly.

The stressful conditions in prison make high demands on staff. Adequate remuneration and staff benefits should be seen as compensation and recognition for their difficult work.

Staff should be provided with decent working conditions, at all times taking into account their own need for human dignity. They should also be provided with the opportunity to participate in recreational activities.

At times the recognition of human rights and the treatment of prisoners is as much a matter of commitment and attitude of the staff as physical resources. However, to ensure compliance with minimum standards, staff should be supported through the provision of adequate facilities and resources.

Adequate numbers of staff may be one of the primary requisites to fulfilling properly the aims of imprisonment. Where more staff cannot be employed, the careful deployment of staff in areas of need is important.

In each country there should be an appropriate training programme for prison staff to which the United Nations African Institute for Prevention of Crime and Treatment of Offenders (UNAFRI) should be invited to contribute.

There should be a national or sub-regional institution to deliver this training programme.

Training of staff equips members with the knowledge, ability and attitudes to enable them to fulfil their tasks. Therefore training curricula should be developed which take into account the aims of the prisons service, and which is mindful of a developing understanding of corrections.

Training should emphasise the practical and theoretical aspects of their work. It should be geared towards training the initial recruit, as well as in-service training for the improvement of existing skills and the development of new ones.

Recourse may be had to the use of external trainers to provide a fresh perspective on aspects of prison work. Organisations such as UNAFRI have a knowledge of conditions and practices in Africa and the rest of the world and could serve as a useful resource for members of the prison service. They should be invited to assist with the development and delivery of training courses.

Training should be coordinated at a national level, so that staff working in different prisons or areas of the country have the same standard of skills.

The penitentiary administration should be directly involved in the recruitment of prison staff.

The prison administration is, or should be, responsible for overseeing the day-to-day functioning of prison staff. Through its practical involvement in prison administration, it has an awareness of the personal and professional requirements of staff working in prisons. It is essential that the penitentiary administration plays an important role in developing the criteria for selection of staff, as well in selecting applicants themselves.

Alternative Sentencing

Imprisonment has always functioned as one of several punishment options available to courts, and usually reserved for the most serious cases (except in cases where the death penalty was handed down). Options such as suspended sentences, fines, and corporal punishments are some of the more traditional court-imposed non-custodial sentences. However, courts often believe that these sentences do not constitute sufficient punishment for certain types of offenders, so a sentence of imprisonment is given instead. In some cases where an offender defaults on one of these alternatives he is sent to prison.

As pointed out in the Declaration, problems such as overcrowding in prison, and disillusionment with its effectiveness as a form of crime prevention, has led many countries to develop new options for keeping offenders out of jail.

Most of these new options have taken the form of community-based sentencing where the offender is given a certain responsibility to fulfil an obligation to the community, or victim, or to look at positive ways of addressing the offending behaviour. Paying compensation to the victim or victim's family, or community service are mechanisms sometimes used.

One of the advantages of a non-custodial sentence is that the sentence is served in the community. The harmful effects of imprisonment are avoided, and the offender maintains contact with his or her family and community. Instead of losing any employment while in prison and becoming dependent on the state, the offender is able to continue working to support him or herself and any dependants.

Traditional modes of African justice were based on the principle of reparation with less emphasis on retribution. In Europe, the United States, Australia, and other countries, the discourse around sentencing is now following the principle of restorative justice which has a similar aim. Restorative justice is based on four principles:

• Crime results in harm to victims, offenders and communities.

• Not only the State, but also victims, offenders and communities should be actively involved in the criminal justice process.

• The criminal justice process should focus on redressing the wrong committed by the crime.

• Offenders should be held responsible for their actions.

Non-custodial sanctions is a channel through which the restorative justice approach can be introduced into various systems.

Although non-custodial options are often available, the courts are reluctant to use them, believing that they are not severe enough, or fearing public outcry that they are letting offenders off too easily. Participants at the conference therefore recommended that steps are taken to publicise non-custodial measures with the courts and the public.

The United Nations Standard Minimum Rules for Non-Custodial Measures – The Tokyo Rules (2.3) – says that

in order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures.

The Kampala Declaration makes several practical recommendations guiding countries in the development of non-custodial sanctions.

Petty offences should be dealt with according to customary practice, provided that this meets human rights requirements and that those involved so agree.

There was some discussion at the conference around the diminished role of customary sentencing practices after colonisation, and many participants felt that some of those practices could be re-introduced into African countries.

Customary methods of dealing with offenders vary from country to country, and even from town to town, but usually have several features in common.

• The offence is dealt with by a grouping representative of the community, rather than by the State

• After listening to evidence from the offender and witnesses or complainant, the group arrives at a decision regarding the guilt of the offender.

• An appropriate resolution is decided upon which may involve some form of punishment for the offender.

• The representative body plays a role in carrying out the punishment.

• In many societies the resolution or punishment aims to be corrective so as to restore the harmony which was disrupted as a result of the offence.

• The process has legitimacy and accountability within its community.

• The process occurs within the community.

Customary practices are a process through which the community can play a decisive role in matters which affect daily life in the community, principally in the area of conflict resolution and maintenance of order.

However, certain principles need to be established to ensure that the rights and interests of the community, offender and victims are protected.

• The fundamental human rights of all the people affected by the process, particularly those of the offender, should be respected.

• Physical punishment should never be imposed. Instead the sentences should aim towards being corrective or restorative. These could include obliging the offender to pay compensation to the victim or victims; performing some form of community service; or receiving corrective counselling.

• These processes should never be used in respect of serious crimes such as rape, serious assault or murder. Such cases should be referred to the police for investigation and referral to the courts for prosecution.

• The consent of the offender and the victim/s should be obtained before commencing this process.

Although, the community justice process operates independently from the State, there should be a measure of state co-operation in the process.

Whenever possible petty offences should be dealt with by mediation and should be resolved between the parties involved without recourse to the criminal justice system.

The criminal justice system offers a formal mechanism for promoting order in the community, which at the same time often removes the responsibility and accountability from the community. Less serious offences, such as matters which relate to relationships between individuals, disputes between parties, and some cases of public order, could be managed through less legalistic channels. The customary processes outlined above are one possibility. Another is mediation of disputes between the parties involved.

Where customary justice models may involve the whole community, or representatives thereof, mediation usually only involves the parties to the dispute and an independent mediator. The role of the mediator is to facilitate a mutually satisfying agreement between the two parties. In settling the dispute, the intention is to develop the relationship between the parties for their future well-being.

Mediation is usually offered by non-governmental and community based organisations in the communities. The mediators are trained. The State is not involved in the process.

Mediation should only be used in cases of petty offences, and may be particularly useful for cases involving children or minor offenders.

The principle of civil reparation or financial recompense should be applied, taking into account the financial capability of the offender or of his or her parents.

The work done by the offender should if possible recompense the victim.

One of the traditional sentences imposed by the courts is a fine, whereby the offender is ordered to pay an amount to the State. Although it may be burdensome and act as a punishment for the accused, this gives little satisfaction to the victim. Instead, the courts could make an order that the offender pay compensation to the victim, or restore any stolen property. This would take account of the hurt done to the victim by the offender, and pay back the wrong done.

Civil reparation or financial compensation is an order which could be made within the community justice model, or by the courts through the criminal justice system. It follows the restorative approach to justice.

In most countries where reparation is ordered by the court, such awards are limited to easily quantifiable monetary loss, such as where a sum of money has been stolen. Awards may also be made for loss of income or medical expenses incurred for injuries sustained during the crime.

The calculations for reparation become difficult where the victim requires compensation for pain and suffering, or for loss of dignity, or a dependant's claim, and may require the evidence from experts as in a civil trial for damages. The recommendations from other countries is that such awards for damages are not made through the criminal courts. To do so would clog the processes and further delay trials.

Since the aim of a reparation or compensation order is also to reduce the use of imprisonment as a sentence, such an order should not be imposed together with a sentence of imprisonment. There is also a danger that if imposed together with a suspended sentence of imprisonment, any default of payment will nullify its use as an alternative sentence. Any order for compensation or reparation should therefore take into account the ability of the offender to pay.

The courts should also consider the possibility of an order which enables an offender to pay reparation in instalments.

The offender could also be ordered to fulfil some form of community service, or could be ordered to do work for the victim. For instance, if the offender threw a brick through the window of a victim's house, he could be ordered to replace the window. Here the offender is made to feel the financial and physical costs of his action and is able to experience restoration to the victim in a very real way.

Community service and other non-custodial measures should if possible be preferred to imprisonment.

The public should be educated about the objectives of these alternatives and how they work.

Community service-type sentences were available in several of the countries represented at the conference, although in the majority, the non-custodial sentences available were restricted to fines and suspended sentences. The delegates agreed that there was a need to develop non-custodial sentences for the sake of sentencing equity and cost.

The success of the community service scheme as piloted in Zimbabwe (see Judge Garwe's paper above), which is being introduced around Africa, is predicated in the following criteria:

• Political willingness to have and actively support a community service scheme.

• Involvement and co-operation of all relevant ministries at a high level.

• Autonomy of the community service scheme with administrative, financial and judicial control.

• Commitment of the judiciary to promote the system.

• Willingness of heads of institutions to participate in the scheme and properly supervise offenders placed in their institutions.

• Co-operation between government and NGOs.

• Engagement of the media in informing public opinion.

In 1990, South Africa introduced the sentence of Correctional Supervision. Correctional supervision is a community-based sentence which is supervised by the Department of Correctional Services through monitoring whether the offender is complying with the conditions of the order, and through individual interviews with the correctional supervision officer. The order may entail any or all of the following conditions:

• House arrest
• Community service
• Restriction to one geographical area
• Abstinence from alcohol or drug abuse
• Attendance on a treatment program

A breach in any of the conditions could result in the arrest of the offender, and referral to the court to reconsider the sentence.

This sentence is not reserved to any category of offender, and could be used in cases from fraud to murder. It is also feasible for any age group. Since its introduction, the sentence has had substantial success, although it is believed that considerably more offenders could be sentenced to correctional supervision.

In most countries, legislation does not exist to facilitate alternative sentencing and needs to be drafted. Policy-makers and interested parties need to consult and develop policy around the development of non-custodial sentences.

The courts tend to be conservative in handing down community-based sentences, often because it is perceived to constitute a soft option, or through lack of knowledge about the options available. The judiciary needs to be educated about these sentences and of the benefits for community and offender, and of the cost saving to the criminal justice system. In cases where the correctional services are responsible for implementation of the sentence, they have a responsibility to communicate with the courts on a regular basis. However, NGOs and community-based organisations often run the programmes which such offenders are obliged to attend, and they should make the successes of such programmes known to the courts and the public. Effective and ongoing monitoring and evaluation of the system is important in this respect.

The interests and concerns of the public should not be neglected, as lack of faith in the system may lead to lack of public support or acts of vigilantism on offenders whom they believe have not been effectively punished. The public can be informed about the objectives of the sentence and how they work through the popular media.

Problems of community-based sentences often lie in its implementation. Volunteers are needed to monitor offenders sentenced to perform community service. In rural or undeveloped areas, volunteers may also be needed to ensure the offender is fulfilling any of their conditions in the community. A system of liaison between volunteers and the law enforcement system needs to be developed.

There should be a study of the feasibility of adapting successful African models of non-custodial measures and applying them in countries where they are not being used.

To a large extent, there is a lack of information about programmes and sentencing options which are available in other African countries. Information about non-custodial sanctions should be collected and evaluated, and this information made available.

African Commission on Human and Peoples Rights (ACHPR)

The conference noted the important role the ACHPR has to play in protecting the rights of prisoners and the special concern it has given to prison conditions through the adoption of resolutions on the subject.

The commitment of the ACHPR to the improvement of prison conditions is evidenced by its appointment of Professor Dankwa as Special Rapporteur on Prisons in Africa. The conference calls on the ACHPR to go further and attach priority to the improvement of prison conditions.

The ACHPR may answer this call by ensuring that prisons are on the agenda at its twice yearly sessions, and by taking up the recommendations of the Special Rapporteur within the Organisation of African Unity (OAU) system and with individual governments.

The Special Rapporteur's terms of reference are the following:

• To make an evaluation of the conditions of detention highlighting main problem areas, drawing on information and data provided by the States and the other sources of information, including NGOs.

• To make specific recommendations with a view to improving the prisons and conditions of detention in Africa, as well as reflect on possible early warning mechanisms in order to avoid disasters and epidemics in places of detention.

• To promote the implementation of the Kampala Declaration on Prisons and Conditions of Detention in Africa.

NGOs are well placed to assist the ACHPR in monitoring the implementation of human rights and the principles of the Kampala Declaration. A channel of communication – through the Special Rapporteur – would assist the Commission with the development of creative solutions to identified problems.

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