In December 2022, according to official figures provided by the prison administration, the prison population in the 142 prisons in the Democratic Republic of Congo (DRC) totalled 44,536. People incarcerated in the DRC are victims of serious violations of their fundamental rights, in particular those relating to respect for procedural guarantees and the right to dignified conditions of detention that comply with international standards. Around 70% of them are awaiting trial. In 4 of the country’s main central prisons (Kinshasa, Goma, Matadi and Mbuji-Mayi), the average overcrowding rate is 720%.
This alarming level of overcrowding in detention centres can be explained by the abusive use of preventive detention, slowness and administrative obstacles, structural dysfunctions in the country’s judicial, penitentiary and security systems, the absence of a legal aid system guaranteeing access to a lawyer, the lack of qualified staff, an insufficient budget and too limited access to bail. These structural dysfunctions disproportionately affect people in vulnerable situations, particularly those in vulnerable socio-economic situations.
In response, ASF, in partnership with local partners, is strengthening access to justice for the most vulnerable populations in detention in the DRC. In 2022, ASF worked in close collaboration with the Bar Associations and civil society organisations active in the prison environment, and intervened in 8 central prisons in 6 provinces (Kinshasa, Ituri, Kongo Central, Kasaï, Kasaï Oriental, and Nord Kivu).
1,820 detainees were identified, met and referred to the appropriate services during prison monitoring visits.
ASF and its partners guaranteed access to first-line legal aid (via free legal consultations offered by the Bureaux de Consultation Gratuites des Barreaux) to 3,511 people in detention.
2,162 adult detainees and children in situations of placement in penitentiary centres received free legal assistance from a lawyer and 19 people in serious situations of vulnerability and/or psycho-medico-social vulnerability received psychosocial support after their release.
ASF’s interventions provided capacity building and technical support to 92 lawyers and monitors in Congolese prisons.
However, the scope of ASF and its partners’ intervention remains limited given the structural nature and magnitude of the problem of prison overcrowding in the DRC. Coordinated institutional reforms are necessary. These include the need to put in place effective and credible control and accountability mechanisms, as well as to offer complementary multi-sector services to detainees. ASF and its partners are raising awareness in order to promote extra-judicial conflict resolution mechanisms and the use of local justice mechanisms to deal with minor or benign offences in order to combat the endemic prison overcrowding in the DRC.
The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.
The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.
In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.
At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.
This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.
In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.
The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.
The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.
Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.
On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.
The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.
In 2018, ASF launched a regional hub in the Euro-Mediterranean region, based in Tunis, with the aim of pooling resources and strengthening and harmonising its action in the region. The innovative aspect of the regional office is to fully assume the historical, economic, political and cultural links that exist between the two shores of the Mediterranean, and to take them into account in order to put in place action at regional level that is coherent and efficient.
The Euromed Hub is made up of five members and the country directors for Morocco and Tunisia. It collects and analyses data from the field in order to guide decision-making processes at national and European level. The hub provides strategic guidance to the region’s offices and identifies opportunities for developing and consolidating partnership networks at both national and regional level. The hub also provides technical support to the country offices in terms of financial management and human resources.
a) Migration: all the countries to the south of the Mediterranean are countries of origin (Tunisia, Morocco) and transit (Algeria, Libya) for migrants. On the European side, migration is taking up an inordinate amount of space in the public debate, and the policies implemented by the European Union and its member states flout the fundamental rights of migrants.
b) Freedom and security: the fight against terrorism and violent extremism can give rise to public policies that restrict freedoms and civic space and hinder democratic transitions and people’s fundamental freedoms. This is true for the south and the north of the Mediterranean Sea, where a proliferation of exceptions to the principle of the rule of law for health and security reasons is threatening the “consolidated democracies” of the European continent.
c) Combating the impunity of economic actors: economic interests maintain a system of dependence from the south to the north of the Mediterranean. The conduct of European economic players in Africa has a major impact on increasing social inequalities and on the environment, and can sometimes be a determining factor in conflict (at local, national and international level).
Bail[1] has increasingly become a contentious issue not only in Uganda but globally. Legal and social debates on the balance between public safety and the right to personal liberty rage on in public and political spaces. Those debates have been at the center of attention in Uganda as many have called for reform of the legislative framework regulating the access to bail and as efforts are made in that sense.
Lawmakers, civil society members, judiciary members and other actors have expressed many different and sometimes contradictory concerns about the current state of applications for bail and its grant in Uganda.
The president has openly protested some court decisions granting bail to murder suspects, arguing that this amounts to provocation of the public[2], and the increase in capital crimes has led some to advocate for more stringent conditions for the grant of bail. Cases of exorbitant fines and unaffordable cash bails imposed on applicants for bail by courts are argued to be discriminatory because only the rich can afford to pay them. Overall concerns have been raised on the inconsistencies in the exercise of court discretions while considering conditions for bail.
Another dimension of the argument regards the cost of bail for the community. Maintaining people in detention has a price and people detained cannot support their family and contribute to the economy.[3] The overall cost of maintaining a detainee in Uganda to the treasury is 22,966 UGX per prisoner per day[4]. As of December 2022, the Ugandan prisons counted 74,414 prisoners of whom 35743 were remand Prisoners.[5] This brings the yearly cost of prisoners’ maintenance to 1,708,991,924 UGX[6], of which 820,873,738, more than half goes to pre-trial detainees daily.
In December 2021, the Chief Justice issued proposed bail guidelines[7]. These were intended to complement the existing legal provisions on bail and promote uniformity and consistency by courts when considering bail applications. One of the goals of the proposed guidelines was to address the abuses in the use of pre-trial detention and the resulting prison overcrowding.
In February 2022, ASF and its partners submitted a memorandum to the Judiciary rules committee highlighting some of the key issues that hinder and impact negatively the treatment of pre-trial detainees. Some key recommendations were not considered. For example, the recommendation on Mandatory release of offenders on bail who have been in detention for 60 or 180 days for petty and capital offenders respectively without trial.
The Constitutional (Bail Guidelines for Courts of judicature) (Practice) Directions, 2022 were however passed and launched by the Chief justice on 27th July 2022. Some clauses of the guidelines have since consequentially amended the Constitutional provision on bail especially clauses providing for mandatory bail for capital offences. Previously, the Chief Magistrates had jurisdiction to grant mandatory bail to capital offenders before their cases were committed to the High Court. With the coming into force of the bail guidelines, jurisdiction to grant mandatory bail to capital offenders is now limited to only the High Court[8]. This has further hindered access to justice for pre-trial detainees especially those charged with capital cases. Lately, release of capital offenders on mandatory bail has become challenging because those who manage to apply to the High court for release on mandatory bail get committed for trial before their files are called by the High Court. In areas where there is no High Court, prisoners have lost hope and have resorted to plead guilty under plea bargain as an alternative. The congestion levels have worsened in some prisons due to an increased number of remand prisoners.
In Uganda, ASF in partnership with the Legal Aid Service Providers Network (LASPNET) is implementing a three-year project titled ‘Protecting procedural and constitutional rights through access to justice’, funded by the Austrian Development Cooperation (ADC).
Under the project, ASF has enlisted paralegals and advocates to monitor violations of procedural and constitutional rights and provide legal assistance in eight districts in Uganda. Since the start of the project, more than 4,000 cases of violation of pre-trial detention rights were registered; of these 2,047 were found in prisons. Over two thirds of detainees reached in prisons were reported to have exceeded the mandatory bail period which is a violation of their right to bail and a continued violation of procedural rights. Also, ASF undertook a baseline study on the socio-economic profile of detainees and the grounds for their incarceration. One of the key findings from the study was that 30% of the detainees did not know of the right to apply for bail and thus had overstayed on remand.
In an effort to pursue its advocacy efforts in favor of pre-trial detainees’ rights, ASF in partnership with Ssekaana Associated Advocates and Consultants and an individual petitioner, Stephen Kalali, have petitioned the Constitutional Court to challenge some provisions of the Bail Guidelines[9]. It is hoped that this will shade more light on the anomalies in the law and practice on bail.
[1] Bail is the temporary release from custody by a court of law of an accused after providing security for future appearance in court on such conditions as the court considers reasonable.
[2] Katusiime Ian. “Museveni’s Stand on Bail.” The Independent 4th October 2021.
Since 2015, ASF has paid particular attention to the issue of imprisonment in the Central African Republic (CAR). In partnership with the Bar Association, lawyers and civil society, ASF is raising awareness among detainees, monitoring detention conditions, offering legal services to detainees and lobbying to ensure that the justice reform (sectoral justice policy) initiated in the country is fully implemented. ASF is in dialogue with the Ministry of Justice, the prison administration, police forces, judges and lawyers to highlight the realities on the ground regarding detention issues.
Although the CAR has a comparatively low rate of imprisonment, in recent years there has been an explosion in the number of people detained, particularly as a result of the increased use of pre-trial detention. More than 80% of inmates at Ngaragba, the country’s main prison, are awaiting trial. The prison, originally designed to hold a maximum of 400 people, currently has more than 1,400 inmates. Many of them are incarcerated in defiance of Central African and international standards.
The Central African Republic has been experiencing recurrent political and security crises for years. Against this backdrop, the State is attempting to reassert its presence and authority, and the judicial system seems to be used exclusively for repressive purposes, under pressure from the national authorities and international partners.
According to many actors, this crisis situation justifies crisis justice. Many of the people held in pre-trial detention are being prosecuted for offences directly related to the crisis, such as criminal conspiracy, breaches of state security, rebellion and possession of weapons. Their guilt is often presumed by the judges in charge of placing and keeping them in detention.
In a country that aspires to justice and where leaders consider the fight against impunity a priority, the use of pre-trial detention seems to be a practice that is rarely questioned. As one senior judge bitterly put it in the above-mentioned study, “it is better to lock up an innocent person than to let a criminal go free”. Fundamental legal principles such as the presumption of innocence and the right to a fair defence are often relegated to second place in favour of political considerations and the need to restore peace and social cohesion.
In June 2022, at a workshop organised under the aegis of the Ministry of Justice, the study was presented to all justice stakeholders.The event brought together senior magistrates, court presidents, judges and prosecutors, examining magistrates and lawyers, as well as representatives of international bodies such as United Nations agencies, the European Union and the United States, and international NGOs. The discussions led to a consensus on the seriousness of the situation and the findings reported by ASF and its partners.The participants agreed on a series of recommendations to be implemented as a matter of urgency.These recommendations include, for example, the need to deliver judicial decisions within shorter timeframes and to provide more training for prosecutors and examining magistrates in charge of following up detainees’ cases.
The issue of detention has become a priority for the Central African Ministry of Justice, as a result of highlighting detention conditions and reporting on the experiences of local players in the field. In October 2022, the General Inspectorate of Judicial Services was strengthened.It is now competent and equipped to act directly on detention issues.
In 2023, ASF will continue its work in partnership with local stakeholders, particularly judicial and penitentiary actors‧s, as well as its advocacy with the authorities so that the commitments made give rise to structural reforms offering lasting solutions to the problem of detention in CAR.
In Morocco, ASF is committed to promoting the protection of human rights in the private sector, in order to contribute to the full achievement of the United Nations’ Sustainable Development Goal 8: Decent Work and Economic Growth.
In partnership with the Rabat Social Studies Institute (RSSI), ASF is working on the issue of corporate social and environmental responsibility (CSER). CSER aims to ensure economic development while protecting the human rights of populations affected by corporate activities. Approaching corporate responsibility from the perspective of human rights, as recognised by international law, provides a legally stable framework likely to prevent human rights violations that could be committed by economic actors.
Morocco has ratified several international conventions relating to respect for human rights and sustainable development. These include the UN Sustainable Development Goals, the UN Guiding Principles on Business and Human Rights, the guiding principles of the Organisation for Economic Co-operation and Development (OECD) and the core labour standards of the International Labour Organisation (ILO).
At national level, Morocco has adopted a series of programmes and strategies for sustainable development and energy transition. The country has drawn up codes of good practice for governance and a new development model that gives a central place to social and environmental considerations. But despite these encouraging initiatives, national and international CSER commitments have yet to be fully implemented.
As in its other countries of operation, ASF seeks to contribute, with its local partners, to promoting compliance with the social and environmental standards in force, whether their origin is the national legislative framework or international law. With this in mind, ASF is organising a series of conferences on “Business and human rights in Morocco” with the RSSI.
The events will bring together a wide range of stakeholders: institutional actors, companies, subsidiaries of multinationals, professional associations, trade unions, journalists, academics and members of civil society. All aspects of CSER will be addressed: the normative dimension, the ethical dimension, the environmental dimension, the social dimension and the participatory dimension, with a focus on the role of civil society and consumer protection.
In collaboration with the Leuven Institute of Criminology, ASF published a series of articles examining the challenges and questions raised by the recent rise of processes to address the historical injustices of slavery and colonialism, particularly in the wake of the Black Lives Matter movement.
First initiatives, mostly still in their infancy, are emerging in former colonial countries. This is especially the case in contexts of settlement colonialism, probably because the lasting legacies of colonialism and historical injustices are even more visible and perceptible today in these countries.
More recently, we have also seen an intensification of political debates about reparation and justice measures to address colonial harms and injustices in countries that were involved in slave exploitation and commercial colonialism. Various commissions of enquiry have been set up in Belgium, France and the Netherlands to investigate the legacy of colonialism and to propose measures to address it – often leading to heated controversies over reparations and apologies.
These developments have prompted reflections in both academic and policy circles on the potential role that transitional justice can play in providing justice and redress for the historical and enduring injustices that stem from the colonial past. Traditionally, transitional justice refers to a range of measures and initiatives put in place in countries that have experienced armed conflicts or repressive regimes to provide a response to past human rights violations and injustices. Mobilising transitional justice as a response to colonial wrongs therefore implies broadening the traditional boundaries of transitional justice, including considering its application in Western countries and expanding the conceptions of “injustices” and “responsibilities” it mobilises. It also requires a critical reflection on the anchoring of transitional justice in postcolonial normative and political frameworks. Without engaging in this reflection, transitional justice may be guilty of perpetuating the structural injustices and power imbalances that it intends to combat.
The contributions to this special series have examined some of the challenges and questions that all these initiatives and reflections raise. In particular, they question the relevance of transitional justice as a framework for dealing with the colonial past and the kind of historical redress model that transitional justice can offer. Drawing on the experiences of various countries, the articles question the effectiveness of well-established transitional justice mechanisms – truth commissions, reparations, trials, commemoration, guarantees of non-repetition – in achieving justice and redress for historical and long-lasting injustices, as well as in dealing with the intergenerational trauma of colonialism. What emerges from these reflections is that while transitional justice can be useful for historical reparation, it faces political constraints (as is also often the case for transitional justice applied in more paradigmatic contexts) and requires a reshaping of its normative and ideological frames.
In June 2022, Valérie Arnould, legal and policy advisor in transitional justice at ASF, intervened before the Special Parliamentary Commission on the Belgian Colonial Past. ASF was able to share its experience in transitional justice and made recommendations, notably on the opportunity to grant reparations to the populations of countries formerly colonised by Belgium and their diasporas.
In order to develop an action that best promotes its mandate and is consistent with the specific needs of the national contexts it is involved in, ASF relies on solid analyses of the issues in the countries where it operates. Being anchored in the realities of the countries is essential in order to develop contextualised expertise, to build strategic partnerships at the local level and to be able to put in place relevant and qualitative actions for the local populations.
Furthermore, the issues we address do not stop at borders and often have transnational dimensions.
To meet these requirements, ASF has been developing regional approaches for several years through its regional hubs in the Euro-Mediterranean region and in East Africa, with offices in Tunis and Kampala respectively.
These regional offices guarantee the necessary proximity to the beneficiaries of the actions and local partners in order to strengthen ASF’s presence in the region. They promote the development of their actions by building on existing expertise and networks.
The creation of these hubs is also part of the organisation’s decentralisation process. One of their functions is to strengthen the strategic dialogue between the different offices and to ensure that the perspective, experiences and expertise developed at the regional level feed into ASF’s global approaches.
The choice to prioritise the creation of these two regional offices was guided by factors both internal and external to the organisation:
The choice to strengthen our presence in regions where we have demonstrated our added value, our ability to mobilise relevant stakeholders and our relationships with national and international stakeholders
The presence of an ASF office with significant experience of the regional context
The identification of transnational issues
Main functions of the hubs
1) Strategic development and guidance
The hubs provide support and guidance to existing missions, and the implementation of actions that are developed in other countries of the region or at the regional level.
2) Expertise and Knowledge
The hubs produce relevant and contextualised expertise based on data collected in the field and linked to the organisation’s advocacy strategies.
3) International advocacy and networking
The hubs provide support to networks, which will thus be able to benefit from appropriate assistance in the development, monitoring and evaluation of influence strategies. While national issues remain the responsibility of the country offices, the hub is more specifically interested in supporting networks at the international level in order to influence the development of public policies.
4) Capacity building
This involves capacity building for country teams in the region, in areas that are functional to the development of intervention strategies and on the basis of a soft peer-reinforcement approach.
This strategy of strengthening regional dynamics has proven its worth in the first year of setting up regional offices:
Regional projects have already been launched in East Africa and in the Euro-Med region.
This has enabled us to initiate actions at the level of regional bodies, such as the African Court on Human and Peoples’ Rights in Arusha.
It allows us to develop actions in countries where we do not have a permanent team, such as Tanzania or Kenya.
Rationalisation and pooling of human resources through the creation of regional functions, covering actions in several countries
The Avocats Sans Frontières team is delighted to present its latest annual report.
We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.
These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).
But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.
Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.
Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.
At the 10th ExPEERience Talk, Nadia Ben Halim (consultant) and Zeineb Mrouki (Programme coordinator at ASF Tunisie) will present a study on corporate responsibility with regard to human rights in the textile sector in the governorate of Monastir in Tunisia.
The textile industry is now worth 3,000 billion dollars and is one of the world’s most important economic sectors. In Tunisia, clothing production accounts for a quarter of the country’s industrial output in terms of gross domestic product, making it a central sector of the Tunisian economy. However, for years, human rights organisations and official reports have documented systemic violations of workers’ rights (undignified working conditions, informal and illegal work, etc.). Among the companies guilty of flagrant violations of workers’ rights are many subcontractors of multinational companies. These systematically fail to meet their obligations and apply the duty of care throughout the supply chain, as required by international standards.
The study, based on documentary research, field surveys and, in particular, consultations with women workers in the textile sector in the governorate of Monastir, reveals systematic violations of workers’ rights, including the lack of social security cover, unfair dismissals, failure to account for overtime, and discrimination specifically targeting women. Recommendations are made to combat the impunity of companies in the face of the legal violations they commit.
This study is part of the PREVENT – Pour une Responsabilité et une Vigilance des Entreprises project, carried out in collaboration by Avocats Sans Frontières (ASF), the Tunisian Forum for Economic and Social Rights (FTDES) and I Watch. In particular, this project has led to the establishment of a mechanism to provide access to information and legal assistance to those most exposed to violations by industrial companies, particularly in the textile sector.
The study will be published on the ASF website at the end of June. You can already read the policy brief on the ASF website: “Les travailleueur‧euse‧s du textile tunisien en quête de dignité et de justice face à des pratiques abusives et discriminatoires”.
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