Registration for the international conference Lawyering for Change 2022 is open!
The event, organised by Avocats Sans Frontières, will take place on 12 and 13 October at the International Auditorium in Brussels
We are delighted to officialy announce the international conference Lawyering for Change. It will take place on 12 and 13 October 2022 in Brussels.
Lawyering for Change 2022 will bring together more than thirty speakers from different countries with different backgrounds and expertise, who will share their knowledge and their field experiences in order to shed light on the many challenges that exist today to strenghten access to justice and the rule of law.
Particular emphasis will be placed on the importance, in the face of contemporary challenges, of thinking in terms of cooperation, of developing coalitions between this multiplicity of actors, of creating networks and communities to foster collaboration and share knowledge.
The Special Parliamentary Commission on Belgium’s colonial past was initially given a one-year mandate until July 2021. Last month, its mandate was extended for a second and final time until December 2022. These extensions are a welcome recognition that the commission needs to have a sufficient time frame to complete its ambitious mandate. The commission has been tasked not only with looking into Belgium’s colonial actions in the DRC, Rwanda and Burundi but also to assess the long-term structural impact of these actions and to make suggestions on how this should be addressed. However, the signatories of this press release are concerned that closing the commission only two and a half years after its creation will leave it to unable to satisfactorily fulfil its mandate: to address Belgium’s colonial past and to propose measures to offer redress for the grave crimes committed during colonial rule and the continuing impact colonialism has in today’s society.
To be effective and legitimate, transitional justice processes such as truth commissions and commissions of investigation need to fulfil certain criteria. Particularly important is the need for participative processes. The commission has organised public hearings in which a diversity of academics, policy officials and civil society actors (including two sessions specifically with diaspora organisations) have been invited to testify and share their expertise on specific issues. But time and resource constraints have otherwise limited the commission’s visibility and public engagement strategies.
We regret the weakness of the communication strategy and outreach processes established by the commission. Only a handful of commissioners publicly communicate about its activities and regretfully some commissioners have even expressed their doubts about the necessity of dealing with the colonial past. While information about the commission’s working methods and hearings are publicly available on the federal parliament’s website, the signatories observe that the commission’s activities remain largely under the radar within Belgian society, and can even be said to be invisible in the DRC, Burundi and Rwanda.
From the outset, there has also been a limited ability of the commission to more broadly consult populations in Belgium, the DRC, Burundi and Rwanda. Consequently, the work of the commission has remained disconnected from popular perceptions of what meaningfully engaging with the colonial past might mean. There has, in particular, so far been little engagement of the commission with the DRC, Burundi and Rwanda directly. The signatories therefore welcome plans, as yet unconfirmed, for the commission to travel to the region. Such a delegation should strive to meet with both state officials and civil society organisations in all three countries. Local stakeholders should also be given the opportunity to submit written statements to the commission. In addition, the commission delegation could take advantage of such a visit to explore possible avenues for future cross-national initiatives between the four countries to deal with the colonial past.
The signatories further call on the commission to give itself the necessary means and time to comprehensively and credibly deal with the two outstanding, and also most politically sensitive issues, namely reparations and the link between colonialism, present-day racism and postcolonial injustices (public hearings on these are planned for over the summer).
While recognition of the nature and impact of Belgian colonialism would be an important outcome of the commission’s work, this needs to be accompanied with concrete proposals for a comprehensive reparative justice agenda. Beyond this, the commission should also consider developing proposals for supplementary measures or mechanisms which can fill the gaps left by the special parliamentary commission. A key legacy the special parliamentary commission should strive for is not of closing the debate on Belgium’s colonial past but of opening the door for further engagements, by all stakeholders involved, to comprehensively reckon with Belgium’s colonial past.
On Wednesday 23 February, the European Commission presented its proposal for a Directive on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937. It imposes a principle of due diligence on companies with regard to human rights and environmental violations. This long-awaited text, whose initial ambition we commend, contains many gaps that could limit its scope and impact.
The purpose of the principle of due diligence provided for in the directive is to oblige companies to put in place measures to prevent human rights and environmental abuses committed by their subsidiaries, suppliers or direct or indirect subcontractors in the context of their activities in the European Union or abroad. In case of fault, companies could be held liable and could be required to compensate those affected.
In particular, the Directive will allow engaging the civil liability of companies at fault. However, the civil liability regime settled risks to be limited in scope. If a company’s business partner has contractually agreed to abide by the company’s code of conduct, the company’s civil liability would no longer be incurred. The directive also fails to take into account the many obstacles limiting victims’ access to such remedies: high litigation costs, the disproportionate burden of proof, lack of access to information, limited legal capacity, and limited limitation periods.
We also regret that the proposal does not provide a clear and satisfactory definition of the notion of direct and indirect commercial relationships between companies. This lack of transparency could also be an obstacle to victims’ effective recourse to justice.
Finally, the Directive would not apply to all companies. It is aimed at companies with more than 500 employees and a net turnover of more than EUR 150 million, and companies with more than 250 employees and a net turnover of more than EUR 40 million, but where a majority of their activities are in a high-risk sector (such as the textile industry, mining or agriculture). It therefore excludes small and medium-sized enterprises (SMEs) from the due diligence obligation.
More generally, ASF stresses the need to involve all affected – and potentially affected – groups, particularly those in vulnerable and structurally disadvantaged situations, as well as environmental and human rights defenders. The consultation obligations and the modalities for the participation of these groups are at this stage unsatisfactorily formulated.
The directive will now be debated and possibly amended by the European Parliament and EU Member State governments. We want to encourage them to take into account the various shortcomings of this first proposal in order to make the necessary amendments to achieve the ambition of this text.
In the Central African Republic, the prosecution of people suspected of witchcraft and charlatanism, which frequently leads to serious human rights violations, systematically impacts women and children. This must be examined from a gender-based violence perspective.
Anti-sorcery violence has been specifically highlighted in several international reports monitoring human rights violations, which point to the fact that the Central African State is failing in its duty to protect citizens, in particular girls and women accused of witchcraft and charlatanism who are succeptible to be subjected to violence, sometimes leading to death, by armed groups or groups of individuals.
In this respect, experience shows that such violence is rooted in structural inequalities and patterns of patriarchal domination against women and certain categories of vulnerable people. This type of violence is therefore a consequence of social and cultural norms that impede the realisation of the rights of women and minors.
With its Central African partners, and thanks to joint funding from the European Union and the French Ministry of Foreign Affairs, ASF is committed to promoting respect for procedural guarantees and access to justice for women and minors (particularly those accused of witchcraft and charlatanism), by taking sustainable action to reduce gender inequalities.
Three areas of intervention work together to achieve this objective:
Legal empowerment, which considers people as full actors in the realisation of their rights and integrates different mechanisms
Legal representation and remedies based on the law and respectful of the rights of women and children
Engagement of institutional actors in the adoption of reforms and practices that are consistent with women’s rights, including on issues of witchcraft and charlatanism. This axis is complementary to the previous ones in order to bring influence and advocacy actions based on the realities on the ground.
These actions contribute to making the specific needs of gender-based violence (GBV) victims and potentially affected groups visible and to amplifying the voice of those affected in order to encourage the adoption and implementation of reforms that sustainably address gender inequalities and human rights violations of those prosecuted for witchcraft and charlatanism.
Samuel Atweka is a lawyer at the Kinshasa/Gombe Bar in the Democratic Republic of Congo.
He is also president of the NGO « Promotion des droits de l’homme et de la justice » (PRODHOJ).
Gysy Umba is a lawyer at the Kinshasa/Matete Bar and a member of PRODHOJ. She conducted the interviews with detainees in Makala prison, mainly minors.
Between March and September 2021, PRODHOJ, with the support of Avocats Sans Frontières, carried out monitoring efforts to evaluate the conditions of detention and access to justice for detainees in the central prison of Kinshasa, known as “Makala”, in the context of the COVID19 pandemic. Makala, which means “coal” in Lingala, is the largest prison in the DRC. Built during the Belgian colonisation in 1957 to accommodate 1,500 prisoners, it now hosts almost 9,000, which represents an occupancy rate of almost 600%.
For ASF, it was only natural to collaborate with PRODHOJ to carry out this monitoring work. The NGO, created in 2019, aims to contribute to the emergence of the rule of law through the promotion and defence of human rights, access to justice and respect for the right to a fair trial. These objectives are at the heart of all its actions, notably through the monitoring of human rights violations, trial observation and judicial or extrajudicial assistance services. It also develops capacity building activities in human rights, justice and advocacy.
What measures have been put in place in the DRC in the context of the health crisis? What were the results of these measures?
Samuel Atweka [SA] : On 21 March 2020, the Attorney General at the Court of Cassation issued a cicrular to decongest prisons in the DRC with the aim to limit the spread of COVID-19. It set out eligibility criteria for prisoners who could be released, such as prisoners in pre-trial detention, those tried for minor offences and those able to pay a transactional fine in order to benefit from provisional release. This circular is still in force today. However, its proper implementation was compromised by pre-existing structural dysfunctions in the penal chain.
This circular also set out the measures to be implemented in detention centres to protect prisoners from the spreading pandemic. But, again, it was difficult to implement these measures given the dysfunctional nature of the prison administration in the country.
We have not been able to access the information regarding the amount of prisoners who effectively benefited from the decongestion measures of the March 2020 circular. According to the National Human Rights Commission (CNDH), less than 50 prisoners benefited from this in April 2020. This is obviously very few compared to the amount of prisoners we identified as potential beneficiaries of the measure during our monitoring.
Today, the magistrates we met say that they no longer take this circular into account. It also seems that at the level of the Ministry of Justice there is no pressure to apply the circular.
What were the objectives of the monitoring that you carried out in partnership with ASF? How did it go?
Gysy UMA [GU] : We wanted to observe the conditions of detention of detainees during this time of health crisis, to talk to them to better understand whether their fundamental rights are and have been respected during this period, and whether they have been sufficiently informed of the protective measures against Covid-19. We also spoke with prison staff to compare their perceptions with those of the prisoners.
To do this, we made several visits to Makala Prison with our monitoring tools: observation form, interview form for prisoners and interview form for prison staff that we had worked on with ASF.
We interviewed 255 detainees, including 230 men (53 of whom were minors called children in conflict with the law) and 25 women (one of whom was a minor girl).
We met the prisoners in the visiting rooms. We sometimes had to wait for a long time because before entering the visiting room, the detainees had to put on special suits. However, there are very few of them. The detainees therefore have to wait until a detainee leaves the visiting room to get their suit.
What did you find most striking?
GU : During the monitoring, I mainly talked to the minors. I was able to see that their hygiene and sanitary conditions are very precarious. One of the minors told me that he washed himself with dirty water. Many suffer from skin problems.
During a visit, I noticed that one child was very ill. He was urinating blood. In Makala, he could not get proper care. I had to intervene so that he could be transferred to another centre and be properly cared for.
The minors also complain about the food provided by the administration. It is poor and unadapted. Some minors sell their food to their peers to buy biscuits or water. Minors with families receive food supplements during visits. But minors without families have no choice but to eat what they are given, which is the same thing every day, in this case the meal of choice for all detainees (of all ages) called Vungulé (a mixture of beans and maize mixed and prepared together).
What are the main findings that you have observed during these seven months of monitoring?
[SA] The main observation is the dysfunction of the entire penal chain. This dysfunction leads to dramatic situations and serious violations of fundamental rights. In Makala, many men, women and children remain imprisoned in inhumane conditions even though there is no valid reason to keep them in detention. A well-functioning justice system would go some way to solving the problem of prison overcrowding in the country.
The vast majority of Makala’s detainees are in irregular detention. In April 2020, a report by the National Human Rights Commission confirmed this finding.
The obvious slowness in the processing of cases has resulted in detainees being held in irregular detention. The pandemic has accentuated this slowness with the suspension of trials as noted above. Detainees spend months without seeing a magistrate. A large majority of detentions are not regularised. The files investigated by the magistrates remain at the Secretariat without the files going to court. Under Congolese law, the Public Prosecutor’s Office has a time limit of 115 days to investigate a case, yet observations in the field show that some detainees spend several months, or even several years, in this pre-trial phase.
We have encountered cases of detainees who sometimes wait for years for their case to be heard. This is the case of a prisoner we met during our monitoring who is being prosecuted for simple assault and battery. He has been in pre-trial detention for five years, although the maximum sentence provided for in the Criminal Code for this type of offence is six months. If the detainees do not have a lawyer or family to follow up on the case, the prosecution leaves the case aside.
In other cases, the detainee has simply not been served with the court decision. This situation creates serious violations of the right to defence. In Congolese law, when a judgement is rendered in the absence of the defendant, the time limits for the right to appeal begin on the day the defendant is served with the judicial decision. This is how we were able to appeal a decision for a person who had been detained for 7 years. He had never been informed of his 15-year prison sentence.
We also encountered a case of a prisoner who has been in prison for 18 years. He had been tried but there was no record of this decision. We alerted the Minister of Human Rights and the Minister of Justice to this case.
In addition, there are many people imprisoned for minor offences such as stealing a mobile phone. In the context of the pandemic, these people should benefit from the decongestion measures put in place at the beginning of the pandemic. There are also detainees who have been acquitted or granted bail, but they lack the means to have the procedure recorded by the court clerks. They therefore remain in detention for months.
Finally, with regard to COVID-19, prisoners do not receive any information on prevention measures from the prison administration.
What are the causes of these dysfunctions?
[SA] The causes of these dysfunctions are multiple and concern the entire penal chain.
In addition to the slowness of the administration and the lack of follow-up of cases by magistrates, one of the causes is the lack of communication between the prison registry and the court registry regarding cases. In order to follow up on cases, the registrars hold prisoners to ransom, for example. The prisoners are not in a position to pay these illegal fees, especially if they have no family to help them. One clerk asked for US$150 from a detainee we met.
In Makala, there is also a parallel administration to the official one. The day-to-day management of the detainees is relegated by the official administration itself to this unofficial administration. A parallel organisation chart has been uncovered within the prison. The members of this parallel administration are prisoners. They have a special status and benefits. This unofficial administration is organised by the official administration. For example, these prisoners are provided with Motorola. In this context, the official prison administration does not manage the prisoners directly.
What are the main recommendations that you are making as a result of the observations made?
[SA] Our recommendations are addressed to all actors in the justice system, both the Ministry and the Supreme Council of the Judiciary. It is important that all actors in the criminal justice system ensure that the rights of detainees and the defence are respected, especially during this period of Covid-19, when the detainees in Makala Prison have become more vulnerable than before.
Detainees must also know their rights in order to ensure that they are respected.
But also, particularly at this time of the pandemic, it is imperative that the prison administration and/or its guardianship informs the prisoners about the protective measures against Covid-19 and provides them with the necessary supplies and access to vaccination.
On the occasion of its presentation to Parliament, the signatories commend the publication of the report written by the multidisciplinary team of experts mandated by the Special Parliamentary Commission on Belgium’s Colonial Past. This report is a new milestone towards a better understanding of the Belgian colonial era. It constitutes an important contribution to a peaceful debate on this issue between the different segments of contemporary Belgian society.
Claims about the historical harms of colonisation and their contemporary consequences in terms of structural racism have been present for many years in the Belgian public debate, but have gained renewed interest since the ‘Black Lives Matter’ movement. It was this social mobilisation, led mainly by Afro-descendant groups in Belgian society, that led to the establishment of the Special Commission in July 2020. The report of the Commission’s experts must therefore be appreciated against the demands for justice regarding Belgium’s colonial past.
In this respect, the report shows certain limitations that should be noted. First of all, this report was born out of a narrow process of truth establishment, mainly contained within Belgian public institutions. As mentioned several times, the Special Commission that commissioned this expert report is a political commission, controlled by the different Belgian political parties. Its work is, for the time being, not open to representatives of Belgian civil society, nor to civil societies from formerly colonised countries. Therefore, the experts’ report is not the result of an inclusive and open process, in contrast to the established good practices of transitional justice in terms of truth-establishment.
Secondly, the report only partially fulfils the objectives set by the Commission itself. It essentially addresses Belgium’s colonial past in the current Democratic Republic of Congo, and does not address the cases of Burundi and Rwanda. Similarly, the report is essentially focused on the actions of the Belgian state, and only slightly covers the role of non-state actors. Yet the commission is mandated to examine the role and structural impact that not only the Belgian state and the Belgian authorities, but also non-state actors such as the monarchy, the church and the private sector had on the colonial phenomenon.
The signatories hope that this report will serve as a basis for an actual Transitional Justice process, whose tools (truth, justice, reparation and guarantees of non-repetition) are now established to be relevant to tackle colonial liabilities and continuities. The report offers a number of avenues for reflection that the Commission should materialize into concrete plans for reforms and in an open and inclusive framework. In this regard, the Commission is particularly expected to publish a work plan for its upcoming work and to clarify its engagement strategies with all stakeholders. This report should not be a mere contribution to History, but the basis for an articulated response to the demands for justice, for the past and the present.
In conclusion, the signatories welcome the initiative of the Belgian Parliamentarians to take up the debate on the colonial period and to try to objectify what is at stake. However, ASF wishes to recall that only a holistic and inclusive process of justice is capable of healing the wounds of Belgian society in order for its different segments to live together harmoniously and to restore the dignity of the victims of Belgian colonisation in Africa.
In Tunisia, the actors of the penal chain tend to perpetuate the repressive reflexes of the former Ben Ali regime. Prison overcrowding remains very high: a 131% rate of occupation with 23,607 prisoners at the end of 2020 (accused and convicted) for around 18,000 places available, resulting in detention conditions below international standards.
The measures taken to counter the pandemic had for a time helped to curb the figures. Between mid-March and the end of April, 8,551 detainees were released, a 37% drop in the prison population. This decrease was due in particular to the mobilisation of several civil society organisations, including Avocats Sans Frontières and its partners in the “L’Alternative” project. By multiplying calls for a decrease in the prison population, civil society has contributed to this notable drop in the prison occupancy rate.
Nevertheless, this historic deflation was only temporary. As a result of short-term measures (presidential pardons, reduced pre-trial detention and increased conditional releases), this drop was quickly erased by the repressive structural dynamics from which Tunisian penal policy still suffers.
Conservatism among judges, difficulties in accessing a defence from the moment of police custody, the massive use of pre-trial detention (62% of those incarcerated are defendants), imprisonment for minor offences (such as cannabis use or unpaid cheques), and the limited use of alternatives to prison are all factors that explain the persistence of this high rate of incarceration.
Changing people’s mind and moving away from these repressive reflexes, particularly in the magistracy, is a long-term task. This is why particular attention is paid to developing advocacy with actors in the criminal justice system and political decision-makers. This is all the more important as reforms of the Penal Code and the Code of Criminal Procedure are underway, which would be necessary for any significant structural change.
To contribute to the reform of penal and prison policy in Tunisia, ASF continues to work with its partners despite the democratic transition slowdown and a period of political instability in Tunisia. In particular, through its “L’Alternative” project, the organisation provides technical and financial support to civil society organisations working at different levels of the penal chain (before, during and after incarceration).
Throughout the world, the pandemic has pushed people further away from access to justice. In Morocco, ASF has been relying for several years on legal clinics, set up in universities, to promote access to justice, particularly for people in vulnerable situations. Under the supervision of teachers and legal professionals, students provide legal services to the population.
During the pandemic, these structures enabled ASF and its partners to maintain the link with justice seekers, and in particular with one of their main target groups: women victims of violence. One of the perverse effects of the measures imposed to contain the spread of the virus was the consequent increase in reports of domestic violence. The limitation of movement and the closure of certain administrative services deprived victims of domestic violence of the usual care systems.
In response, the legal clinic continued to provide legal advice and guidance via telephone consultations and the What’s app. By taking into account the habits of the beneficiaries, ASF was able to maintain contact with the women victims of violence in order to accompany them during the pandemic.
The Covid-19 crisis also presented a challenge to the organisation of legal clinics. Access to prisons and protection centres, but also access to the legal clinics’ facilities was limited. To address those issues, four lawyers provided a service via different digital platforms (Zoom and Whatsapp) to receive calls from justice seekers and respond to their needs for legal advice and guidance.
The online coaching and capacity-building sessions for students were a real success. Despite some initial difficulties in adapting, the students, supported by lawyers, were able to receive complaints and provide guidance to the victims.
The legal clinics also organised mock trials via zoom, in order to prepare students for the digitalisation of the judicial penal chain (and in particular for remote trials). This activity allowed ASF to anticipate the future challenges linked to those transformations.
Mohamed Ramsis Ayari – Sfax Association of Jurists –“Reforming the penal and penitentiary system in Tunisia”.
Within the “Alternative” project, funded by the European Union and implemented by ASF and ATL MST SIDA, the Sfax Association of Jurists seeks to reform the penal and prison system in Tunisia. Through various advocacy and awareness-raising activities carried out with magistrates and prison staff in Sfax, the association is working towards reducing prison overcrowding in Tunisia, in particular through the development of alternatives to imprisonment.
Could you introduce yourself and the work done by the Sfax Association of Jurists?
I am Mohamed Ramsis Ayari, lawyer at the Cour de Cassation, teacher in Human Rights and Civil liberties at the University of Sfax, local coordinator of the elections since 2011 and member of the Sfax Independent Higher Election Authority since 2014. I am also a member of the Sfax Association of Jurists since 2003, its secretary general since 2015 and coordinator of the project “Reforming the penal and penitentiary system in Tunisia”.
The Sfax Association of Jurists was created in 1988 and has experience in all areas of law, including human rights and public liberties. Its members are lawyers, judges, law professors and researchers. Our action consists essentially in promoting the revision of legal texts to the legislator, in view of the deficient character of the current legal and jurisdictional system. Our advocacy work extends to all actors in the criminal justice system.
Tell us about the project you are carrying out. What led you to start it?
Tunisian criminal legislation is repressive and not rehabilitative. It is marked by its cumbersome procedures, unequal access to a fair trial within a reasonable time, an embryonic probation system and very little use of alternatives to imprisonment. The consequence of all these dysfunctions is systemic prison overcrowding. This is why the project was mainly designed to fight prison overcrowding and to contribute to the establishment of a probation office in Sfax, which has finally opened in March 2021.
The project, which started in April 2019, aims to reform the penal and penitentiary system, especially regarding alternative sentences. We want to push the legislator to enshrine these sentences. It is true that some of them are already in place (electronic bracelet, community service, etc.), but the panel we are aiming to adopt extends to 18 measures in total. The objective is twofold: both the legislative consecration of these alternative sentences (by law or decree) and their practical implementation.
What activities have you implemented so far?
The project includes several types of activities. First of all, we have organised awareness-raising sessions for criminal judges to encourage them to impose alternative sentences that are already enshrined in the law – in other words, to exploit what already exists. We are also working, together with legal experts, on recommendations for the revision of the Penal Code and the Code of Criminal Procedure. The idea is not to replace existing work [two revision commissions have already made proposals for reform of the two Codes] but to propose specific recommendations linked to the general objective of reducing the prison population. In other words, by reducing the use of pre-trial detention [62% of detainees in Tunisia in 2020] and developing alternatives to imprisonment. The book resulting from the committee’s work will be presented to the deputies of the Assembly of People’s Representatives.
In addition to these advocacy efforts, we organised awareness-raising/training sessions for about sixty managers and prison officers in the Sfax prison. They were all delighted with the content of these sessions, but initially it was difficult to initiate the process. The prison staff really tried to make us understand, from the start, that the situation was not Manichean. Prison overcrowding is a problem for everyone, and affects the working conditions of staff as well as their rights and those of the prisoners. This enabled us to see things differently, to adapt the sessions and to take into account the difficulties of all parties (prisoners and prison staff). Many ideas came from these exchanges and our ability to listen to their problems and the reality of their work (very high levels of stress) ultimately led to a high level of attendance by officers and managers at all our training sessions.
We also provided legal support to a number of detainees in pre-trial detention. This action was also a great success since 70% of the prisoners we assisted were released. We noted that the profile of these defendants is particularly homogeneous: the overwhelming majority are young people between 20 and 30 years old and are in very fragile socio-economic situations.
What are the future actions planned for the last year of the project?
We plan to carry out training sessions, specifically for the probation officers of Sfax, 7 people in total. We are also going to develop a practical guide on community service for host structures, in order to raise awareness on probation among public enterprises and other local public authorities. It is important to know that most of the structures that would be likely to welcome community service workers refuse to do so out of mistrust. So we need to raise awareness, but also, in my opinion, to impose by regulation an obligation for these public entities to receive them.
The main challenge is to spread the culture of probation. Mentalities and the penal system are still very repressive. Both the penal actors and the public opinion are reluctant, so we will also develop awareness-raising spots about community service and probation which will be broadcasted by the media and social networks. This is a good way to change mentalities.
Finally, we are going to provide legal information sessions to the detainees in Sfax in order to provide them with knowledge of their rights so that they can also take decisions accordingly. In order to be more relevant, we will divide these sessions between prisoners who have already been tried and those who are awaiting trial, whose needs for legal information are significantly different.
What was the feedback from the actors who participated?
What encouraged us a lot was the fact that the Ministry of Justice itself supported our awareness-raising activities among criminal judges. It required the presence of all prosecutors, presidents of courts and criminal judges in Sfax. This good relationship also facilitated the opening of the probation office, as the Ministry of Justice committed itself to its opening in 2020. Moreover, thanks to our awareness-raising activities, the first electronic bracelet sentence in Tunisia was handed down in Sfax in June 2021.
As for the General Committee of Prisons and Rehabilitation, the partnership agreement we managed to conclude with them has helped a lot and our relations with the prison administration, including in Sfax, are now very good. The success of the awareness-raising/training sessions has also contributed to the quality of this relationship. Our ability to take into account the needs of prison officers and managers has convinced them of the sincerity of our commitment to improving conditions in prison – both for those imprisoned there and for those who work there.
What is your feedback from your experience with the Sfax Association of Jurists?
The main added value has been the strengthening of our expertise, especially in working with prison officers and managers. The project has also enabled us to broaden our partnerships and to establish a relationship of great trust with criminal judges and the prison administration.
Although your work is not directly implemented in detention, what is your assessment of the situation in Sfax prison today (prison population, detention conditions, working conditions of prison staff, etc.)?
Everything is linked to prison overcrowding. It is the real bête noire. It influences everything: working conditions, detention conditions… How can we talk about rights, and human rights, when three prisoners have to sleep on the same bed? How can we demand any respect for human rights standards? There is a real causal link between overcrowding and deteriorating working and detention conditions. Officers sometimes find themselves supervising thirty inmates, which is absolutely enormous. On average, the prison holds around a thousand prisoners, but depending on the time of year, it can be as high as 1,500 or 1,600. And more than half of them are remand prisoners, and are therefore deprived of their freedom without trial.
Moreover, it was very interesting to learn from our discussions with the prison managers and staff the difference between working with remand prisoners and convicted prisoners. The latter have a clear idea of their future, a release date, or are in the process of appealing their sentence. But in some ways they are more serene than the defendants, who are very agitated because of the uncertainty of their situation.
What change(s) would you like to contribute to through your action? What reforms do you think are necessary in penal and prison matters? Specifically in the field of probation?
Last year, during the first phase of the Covid-19 crisis, we managed for a while, especially through advocacy actions carried out with the other members of the Alternative, to reduce the prison population of the Sfax prison to a normal occupancy level of 1000 prisoners. But this decrease was only temporary, since by the second half of 2020, we were back to “normal”, i.e. an occupation of 130 to 160%. So for us, one of the desirable changes would be for this overcrowding to disappear for good. And the experience of 2020 showed us that this was possible.
What we also want is to succeed in instilling a culture of probation and to make it accepted, by the general public as well as by all actors in the penal chain.
As for necessary reforms, I think that the priority now is to create a law that regulates probation and clarifies its functioning. This should be done from an organisational point of view – the probation office should be under the authority of the Ministry of Justice and be chaired by a judge in charge of the execution of sentences – as well as from a budgetary, logistical and functional point of view.
It is also necessary to amend the Penal Code and the Code of Criminal Procedure in their entirety, especially those provisions that are responsible for prison overcrowding – especially the thorny issue of pre-trial detention.
What is the role of civil society organisations in prisons and penal reform? How do you think this civil society/prison dynamic can be made sustainable?
Civil Society have multiple roles to play. In prisons, CSOs can provide psychological or legal assistance to prisoners, organise cultural activities, etc. Outside the prison walls, our role is to provide support to prisoners. Outside the prison walls, our role is to constantly advocate to push the actors of the penal chain and political decision-makers to commit to simplifying, clarifying and humanising Tunisian penal policy towards more rehabilitation and less repression.
The main action to make this presence of civil society in the penal and prison debate sustainable, and also concretely on the ground, is to seek to conclude partnership agreements, in particular with the prison administrations and the General Committee of prisons and rehabilitation. From there, everything becomes easier. As for the Sfax Association of Jurists, we have in mind to leave all the content of the training sessions to the Sfax prison so that they can continue with the new staff who arrive and that our action, even without us, can continue.
The L’Alternative project is funded by the European Union
In Uganda, access to justice is limited by the financial resources of local populations but also by the geographical distance to the courts of law. Most of the justice law and order services remain in the urban areas and central region with only 18.2% of the population in rural areas able to access a Magistrate court within a distance of 5km (compared to 56% in urban areas). This geographical distance creates a physical barrier that may result in victims or justice seekers relinquishing their rights.
Women face additional challenges as gender discrimination and patriarchal norms often discourage them to solve their disputes in State Courts. As it is considered inappropriate for women to talk about family matters in a public forum.
For all those reasons, many people use the informal justice system in order to resolve conflicts. And community-based mediators have a big role to play in order to assist local populations in their demands for justice, especially women who still face structural challenges on basis of gender and struggle to benefit from safe spaces to express their grievances.
ASF, through the DGD and LEWUTI mediation projects, provided mediation services to 633 people in 2020 in the Karamoja, Albertine and the Acholi Sub regions. Mediations conducted by ASF trained practitioners have been well received. Under the LEWUTI project for example, 94% of beneficiaries expressed satisfaction about the services.
The project design has been a key factor in its success. ASF community-based mediation program, funded by ENABLE and DGD, provides a basis for a consistent and human rights-based approach to mediation. It empowers trusted individuals within the community by enhancing their skills in dispute resolution. The mediators work within their communities and provide free mediation services to the community.
Additionally, they are each attached to a coach and a mentor to continuously provide guidance in the areas of law, and referral services they may make use of. The continuous mentorship and coaching has improved the quality of mediations as well as referrals undertaken by the mediators. It has additionally enabled them to gain trust within the community and with local leaders and elders who constantly refer cases to the ASF trained mediators.
The services provided by the community-based mediators came in very handy at the height of Covid-19 pandemic, especially because of the restrictions that resulted from the crisis. The mediators constituted critical first line legal support providers during the global pandemic, which created more inequalities in access to justice especially in the rural areas.