ASF’s East Africa regional hub

This article was published in ASF’s 2022 annual report.

In recent years, ASF has progressively adopted a regional approach to its activities in East Africa. To lead the organisation development in the region and enable the implementation of strong and coherent regional strategies, a regional hub was created in Kampala in 2021. It is currently made up of three staff, in addition to the Regional Director and the respective Country Director for Uganda and Coordinators of Programs for Kenya and Tanzania.

Countries in East Africa share historical, economic, political, social and cultural ties, and have become increasingly integrated. In this context, issues of interest to ASF, such as the governance of natural resources, detention, or security and liberty, may cut across several countries. Lessons learnt when implementing programs in one country can therefore be of great significance to develop our action in other contexts.

Since its creation, a key role of the Regional Office has been to strategically compile and redistribute knowledge across all programs. This has allowed for synergies to be developed, while also leaving space for the contextualization of each intervention.

In addition to this, the creation of new roles dedicated to specific technical functions within the regional team has provided a way for ASF to improve methodological support to the various country teams, in areas such as research, monitoring and evaluation, strategic litigation, and advocacy.

A key priority for the Regional Office is also to identify opportunities for development at a regional level, including through the drafting of multi-country and regional projects. In March 2022, ASF launched a two-year project funded by the Belgian DGD entitled ‘Protecting Civic Space: a Public Interest Litigation Approach’. Covering three countries in the region, the project aims to contribute to the advancement of the rule of law in East Africa through mobilizing civil society around regional human rights treaty bodies, mechanisms and instruments.

Moving forward, the Regional Office intends to keep strengthening ASF’s presence at a regional level in East Africa. Whether through advocacy, strategic litigation, or other engagements with external stakeholders, efforts will continue throughout 2023 to ensure that ASF’s work is visible and impactful in the region.

ExPEERience Talk #11 – Decriminalising poverty, status and activism: a global emergency, an international campaign

  • When? 5 October – 12 pm (GMT+1, Tunis) ; 1pm (GMT+2, Brussels)
  • Language: French
  • Free online event – Mandatory registration

This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.

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. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.

During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.

To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.


  • Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
  • Soheila Comninos – Senior program manager at Open Society Foundations
  • Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
  • Asmaa Fakhoury – Country director Morocco
  • Maria José Aldanas – Policy Officer at FEANTSA

Combating prison overcrowding and illegal detentions in the Democratic Republic of Congo

This article is part of ASF’s 2022 annual report.

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.

Bail in Uganda: A right or a privilege?

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.

[3] Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) 11ff.

[4] Around 6$

[5] Uganda Prisons Service, Monthly Newsletter, (Deceember 2022)

[6] Around 450.000$

[7] “The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2021”

[8] (Para 10(3) and 11(3) of the constitution (bail guidelines for courts of judicature) (practice) directions, 2022

[9] in the case of Kalali Stephen Vs Attorney General Constitutional Petition No 32of 2022

The challenges of detention in the Central African Republic

This article is part of ASF’s 2022 annual report.

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.

In March 2022, ASF carried out a study looking in depth at the issues relating to detention in CAR. The report, “Les pratiques de privation de liberté en République centrafricaine, reflets d’une justice de crise et d’une justice en crise“, carried out with Inanga and with financial support from the European Union, points the finger at practices that criminalise poverty and an abusive use of preventive detention.

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.

ASF’s annual report is available!

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.

Protecting constitutional rights of pre-trial detainees through access to justice in Uganda

ASF’s team in Uganda has just published a baseline study on ‘Protecting constitutional rights of pre-trial detainees through access to justice in Uganda’. It is available on our website and will be presented during an ExPEERience Talk on 2nd March 2023. You can sign up to follow the presentation online.

The (over)use of pre-trial detention in Uganda

Although detention pending trial should be the exception rather than the rule, the use of pre-trial detention is highly prevalent in Uganda. In March 2022, over half of the prison population was awaiting trial, one of the main contributing factors to a prison occupancy rate of over 300%.

Prolonged pre-trial detention does not just lead to overcrowding, it also makes one more vulnerable to torture, ill-treatment and coercion to make a false confession. For a suspect or accused person, spending a significant amount of time awaiting trial in prison undermines its chance to benefit from a fair trial as well as its presumption of innocence.

There are safeguards in place in Ugandan law, including in the Constitution, to ensure that pre-trial detention is used sparingly and with respect for an accused person’s rights and freedoms. However, these provisions are often violated, whether due to abuse of power by officials, slow investigations, corruption, case backlog, ignorance of the law, and/or lack of adequate legal representation.

In 2021, ASF conducted a baseline study to gather much-needed evidence and data about the situation of pre-trial detainees in Ugandan prisons. The objective of the study was to provide an overview of the socio-economic profile of detainees, patterns of detention and arrest, and experiences of pre-trial detention.

The socio-economic profile of pre-trial detainees: What the baseline study tells us

In Uganda as in other countries around the world, pre-trial detention disproportionately affects the underprivileged. The majority of suspects and inmates surveyed (77%) had either no qualification or had only completed primary school. Only 8% were engaged in formal employment around the time of their arrest, while the rest were dependent on the informal sector or peasantry.

These dynamics have significant implications for the criminal justice system. Individuals from economically and socially disadvantaged backgrounds are more likely to be involved in low-level petty offences as a way to make ends meet, in which case pre-trial detention may both be unnecessary and further reinforce their marginalization.

They are also likely to be less knowledgeable about their rights, encounter more challenges in accessing legal aid, and not have the resources and support networks to recover from a long period in pre-trial detention. Those with additional vulnerabilities, such as refugees, women and children also experience added challenges.

Constitutional and procedural safeguards

The Constitution of Uganda provides that a suspect detained at a police station should be produced before a magistrate within 48 hours. This is to allow for judicial control of the charge and necessity of detention. In the baseline study conducted by ASF, only 7% of suspects found in police custody had been there for less than 48 hours. The majority of suspects (63%) also did not know of their right to apply for police bond, which means that few were able to advocate for themselves.

In Uganga, the Constitution provides that pre-trial detention should not go beyond 60 days for non-capital offences, and 180 days for capital offences. In practice, 59% of inmates surveyed in prisons had spent over 180 days on remand. Several prisoners had been awaiting trial for several years, including a 21 year-old female prisoner who had been on remand for six years of her life. The recent passing of new bail guidelines is likely to worsen the situation.

Access to legal aid: a necessary but insufficient condition for the rights of detainees to be upheld

Of all the inmates surveyed, only 19% had accessed legal services during their time in detention. Free and accessible legal aid services are key in order to ensure that inmates are made aware of their rights and supported in moving their case forward or accessing bail. During the launch of the baseline study report, stakeholders from criminal justice institutions and legal aid service providers called for the National Legal Aid Bill to be passed into law so that access to legal aid is guaranteed to indigent or people in vulnerable situations.

However, more systemic changes are crucial in order to ensure that the use of pre-trial detention is limited to those cases for which it is necessary, and used in accordance with procedural and constitutional safeguards. From the point of arrest, all stakeholders in the criminal justice systems as well as the government of Uganda have a role to play in ensuring that individual rights and freedoms are respected, that the criminal justice system does not unduly criminalise the disadvantaged and that violations are duly identified, investigated and remedied.

Full policy recommendations are available in the baseline study report.

ASF’s work in pre-trial detention in Uganda

Since 2019, ASF and its partner the Legal Aid Service Providers Network (LASPNET) in Uganda, with funding from the Austrian Development Cooperation (ADC), have been working to protect and promote constitutional and procedural rights in the administration of justice in Uganda. As part of this, free legal aid services have been provided in eight district to over 4000 pre-trial detainees. ASF also conducts sensitisation sessions to empower communities to enforce their rights, as well as local and national advocacy efforts for positive reform.

Fight for the decriminalisation of poverty and minor offences

poverty is not a crime

This article has been taken from the Annual Report 2021 of Avocats Sans Frontières.

In Morocco, as in other countries, ASF is committed to the decriminalisation of poverty and minor offences. These offences mainly affect vulnerable groups, particularly people in a precarious socio-economic situation and people who suffer discrimination on the basis of their gender, origin or sexual orientation. The criminalisation of these types of offences contributes greatly to congestion in prisons and therefore to prison overcrowding in many countries, particularly in Africa.

The Pan-African Campaign for the Decriminalisation of Poverty and Minor Offences, which originated in English-speaking Africa, was launched in Morocco in 2021 in the context of the global Covid-19 pandemic. During this period, the number of arrests has been on the rise and has put further strain on an already overburdened prison system. ASF and its partners, Adala and the Moroccan Prison Observatory (OMP), joined forces to strengthen the dialogue between civil society actors with the aim of defining a common strategy for advocacy and legislative reform.

The partners organised an experience sharing workshop between Tunisian and Moroccan actors to identify priorities and strategy for the campaign in both countries. In Morocco, the opportunity is all the more important as the country committed to reforming its penal code in 2013 by adopting the “Charter for the reform of the judicial system”. It is therefore essential for civil society actors to seize this moment to address the authorities, particularly the Ministry of Justice and the Parliament, to promote an overhaul of the penal code that takes into account the experiences of those subject to trial and the discriminatory nature of the criminalisation of poverty and minor offences, in order to respond to the problem of prison overcrowding in the country.

Being detained in the Makala prison during the pandemic : An interview with the NGO PRODHOJ

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.

Prisons in Tunisia: inertia of a repressive system

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).