Detained for 10 years for no reason

Makala, which means “coal” in Lingala, is the central prison of Kinshasa. It is also one of Africa’s main penitentiaries: there are around 8,500 inmates in a complex of pavilions and brick and metal shacks, initially designed to accommodate 1,500 people. It is a small town, an ecosystem, where all can be valued, exchanged, and negotiated down to the floor space to sleep on. Some cells of 100 m² house 200 inmates, many of whom sleep on the floor. They are underfed and have serious problems of malnutrition. The beatings and the ill-treatments can sometimes lead to death. The extreme overcrowding and the insecurity inevitably create conflicts which will only be handled with violence. Today, at the Makala prison, we met with F. In 2009, F. was 23 years old and lived in Ndjili, a town in the west of Kinshasa, situated close to the airport. That year, he was involved in a land dispute between his aunt and a neighbour. F. spoke as a witness. After refusing to give his aunt’s address, he was prosecuted for vandalism and sent to Makala. A few days later, he stood before a judge who was to decide on his release. Since then, he hasn’t heard from the judge. F. stayed at Makala. Like many others, he sunk into oblivion, lost in in the prison’s handwritten records. F. has therefore been arbitrarily detained for 10 years, without ever being judged. For vandalism. A few weeks ago, one of ASF’s partner lawyers came across F. After a little searching, he discovered that, in 2012, a magistrate had closed the case without further action. Thus, F. should have been released. However, without communication between the prosecution and the prison administration, no one had been informed of the decision allowing his release. F. spent 10 years of his life in prison, in atrocious conditions. In a few weeks, F. will be released*. But in Makala, there are hundreds of people in this situation: nearly 80% of inmates are in pre-trial detention. So, what are the solutions? First of all, it is necessary to cut loose the old remedies that give priority to the construction of prisons, legal reforms, and training for judges. On the latter point alone, experience shows that the magistrates generally know the principles of criminal procedure under domestic law. These measures have no proven impact on improving the criminal justice system. Next, the main causes of the abusive use of pre-trial detention must be recognized. ASF’s experience highlights the hidden motives of actors in the criminal system who pursue specific goals, which are occasionally in contradiction with the norm. Included in these motives, cumulatively or not, is the following:

• Political motives: the order comes from “above” and pre-trial detention makes it possible to exclude dissenting voices. This was particularly the case in the Congolese pre-electoral context;
• Repressive motives: Pre-trial detention is excessively activated, consciously or not, to control behaviour, rather than to facilitate the investigation of a criminal case;
• Economic motives: Public action is diverted in order to obtain economic benefits. This misappropriation takes the form of extortion, possibly hidden by a legal measure (transactional fine, security,…).

Finally, all action towards the change must take into account the complex nature of the logics and interactions that drive actors within the criminal justice system to apply or deviate from the rules. In terms of action, this includes:

• considering the population as a lever of change to positively influence criminal practices;
• establishing a regular consultation with all actors in the criminal system
• integrating civil society as an influential actor aimed at challenging and empowering actors in the penal system on an ongoing basis in serious cases of human rights violations

In concrete terms, to defend cases like that of F.’s, ASF and its partners bring appeals before national courts, conducting advocacy campaigns and supporting the organisation of citizen action. But to increase the impact, it is necessary to act continuously, through a network of action led by activist lawyers, academics, and members of civil society. This network is being created through ASF’s action, both in the DRC and internationally. To keep watch and to fight, but most importantly so that forgotten inmates such as F. can be defended, and their rights be restored. *F. has been eventually been released. We are now working to help him obtain reparations. Bruno Langhendries