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.
