The future of prisons in Africa

by Prof Lukas Muntingh

Background

Prisons, Foucault said, is a despicable solution that we cannot seem to do without. If one is to really understand how despicable prisons are, a visit to many African prisons will show this with horrific clarity. There is of course a wide variety, ranging from the two high-tech immaculately clean privately operated prisons in South Africa to the guard with an AK 47 under a tree in South Sudan. There are some one million people imprisoned in Africa on any one day and in some countries the majority are unsentenced, often sitting for months if not years waiting for their trials to start and conclude. Conditions of detention are generally an affront to human dignity with hundreds of people crammed into buildings that were built by the colonial powers more than 50 years ago and are now wholly inadequate to accommodate the numbers sent there. Only South Africa has consistently built new prisons and renovated older ones over the last hundred years. African states have in general not invested in their prison systems, neither in the infrastructure nor in the staff, and continued using the buildings left by Britain, France and Portugal. In many states officials leave the day-to-day running of the prisons to the prisoners and keep a safe distance from the poorly ventilated cells.

Prisons, like the police, in Africa were imported from Europe as a tool of social control with little interest in human rights and release preparation. More than fifty years on it is remarkable how intact these features of the colonial administrations have remained with little political will to transform them. Even at the regional level the African Commission on Human and Peoples’ Rights have remained rather soft spoken about the deplorable conditions of detention and poor treatment in many African states and the unwillingness of governments to embark even on modest reforms. Despite decades of investment and calling for the improvement of compliance with human rights standards, the overall impression is that this has had very little impact. The moment donor funding ends or an NGO withdraws it services, the situation is highly likely to revert to what it was.

Prison administrations have little say about who is sent to them as that decision lies with the courts and in some countries, with reference to unsentenced prisoners, with the police. The prisons portfolio is usually under the justice or home affairs ministry competing with other more important departments. Given that African prison populations are generally small, but that prisons departments remain an important employer in a system of patronage, there is little incentive for a National Commissioner of Prisons to embark on a progressive plan of reform. A further fact is that general population growth has placed ever-increasing pressure of criminal justice systems and on prison infrastructure. Even if crime trends remained relatively stable, the consequence is that African prisons had run out of space several decades ago.

To summarise, (1) prisons are frequently used unnecessarily do detain people awaiting trial or punish them for offences that do not pose a threat to public safety, (2) prisons in general detain people under inhumane conditions, and (3) there has been little investment in prison systems, not serious efforts to re-think the prison in Africa.

Looking ahead through the nexus of governance and economic growth

In assessing what the future holds for Africa’s prisons over the next 20 to 30 years, it helps to look broadly at the nexus of governance and economic growth. Through this lens it is possible to discern three broad groups of states being the failed states, the poor states and the upcoming states, and the future of their prison systems differ markedly.

It is highly likely that in the failed states of Africa, such as Somalia, Guinea Bissau and the DRC, that the situation for prisoners will worsen, if that is indeed possible. For example, the only prison in Guinea Bissau was burnt down in the country’s recent civil war and there are only a few makeshift cells in the former ministry of commerce, so squalid that the police are unwilling to put long-term prisoners there¹. Mass escapes from prisons in the DRC are increasingly common with dilapidated buildings providing little resistance to prisoners wanting to escape their inhumane conditions of detention. With weak or non-existent state structures, no policies or ability to implement decisions and maintain peace, or governments engaged in fighting localised wares, prisons as we know them, will most likely disappear. They may literally fall apart together with whatever is left of the court system. A number of consequences may emerge from this. The first is the emergence or proliferation of unofficial or irregular places of detention run by local militia or quasi-law enforcement agencies. Secondly, assuming that traditional forms of justice have remained relatively strong in these states, existing in parallel to fledgling formal criminal justice systems, traditional systems will continue to exist and may ultimately replace the remaining façade of a formal criminal justice system. There is consequently a real risk of summary punishments by quasi-law enforcement agencies as well as vigilante actions. For example, reports from the DRC indicate, at least anecdotally, an increase in mob justice or justice populaire as it is known there². A man from Goma, who admitted to lynching an alleged thief in July 2014, said:

“There is no need to go before the courts; they serve no purpose. How many times did I try to put this matter through the system? The same thief was on his third attempt and you want me to waste my time with a [justice] system that doesn’t exist?”

The next group of states are the poor states with limited economic prospects, but with a fair measure of political stability, such as Malawi. Facing numerous other developmental challenges as well as an economy highly dependent on agriculture, it is unlikely that rapid transformation of the criminal justice and prison systems will happen. Despite development aid as well as support from non-profit organisations, the daily challenges and structural constraints remain almost insurmountable. These states also have, in general, small prison populations and face more pressing development challenges such as health care and education. There is little scope and willingness to invest in the prison system and prisons systems will remain highly dependent on the donor community and civil society to bring about any improvements, even of a minor and temporary nature.

The third group of states are the fast growing economies of Africa, often derived from resource exports, who have a more or less functional bureaucracy in place. Rwanda, Tanzania, Mozambique, Cote d’Ivoire and Ethiopia had GDP growth rates in excess of 7% in 2014. While these economies are growing rapidly, it does not necessarily follow that the benefits will be felt by all. Rather, it will be the preserve of a small emerging middle class who are at the right place at the right time with needed skills and political connectivity. In these countries inequality will increase in the years to come. A small middle class that feel threatened by a large poorly educated, unemployed and impoverished majority will mobilise, through their political leaders, the criminal justice system to make them feel safer. In particular, it can be expected that the police will continue to police the “borders of belonging” as it was under the colonial administrations. The consequence is that it will be the poor and other out-groups who will be the target of law enforcement. Political leaders will have little choice but to regard increasing crime as a threat to their own political well-being and invest in the appropriate rhetoric, tougher law enforcement and stiffer penalties for wrong-doers. The result will be an increase in prison populations as well as more space for prisoners as these states now have the means to build prisons and add capacity to existing ones. This has already happened, for example, in Mozambique, Zambia, and Cote d’Ivoire (renovated). As much as prisoners’ rights advocates repeat the mantra not to build more prisons, it is equally true that many, if not most, of Africa’s prisons have reached such a state of disrepair that it is no longer possible to meet the minimum standards of humane detention. Building and renovating prisons have become a human rights requirement. Efforts by the private sector to (e.g. G4S) build and operate prisons in Africa have, as far as could be established, not amounted to anything. It is perhaps the costly exercise that South Africa has had in this regard that sealed their fate on the continent.

Other developments

Parallel to these three scenarios, there are a number of notable developments. While the developed world has for decades been supporting prison reform in Africa, Britain funded in 2013 a prison in Mogadishu for pirates and terrorist leaders. At the time there were some 400 Somalis in UK prisons because there were no prison in Somalia to detain them. In 2010 a UN-funded prison for pirates opened its doors in the breakaway area of Somaliland. Clearly, the idea is that the UK and other developed nations do not want large numbers of pirates and terrorists in their prisons and is willing to fund prison construction in Africa. Such purpose-built prisons funded by foreign governments may become increasingly common, especially if it forms part of a broader strategy in Europe and North America to protect its own prison populations from radicalisation. This is, however, part of a larger trend as by 2013 some 14% of prisoners in England and Wales were foreign nationals³ and with a rapidly increasing prison population, it is expected that the UK will send more and more prisoners back to their countries of origin, including to Africa. Since 2006 under the Facilitated Returns Scheme prisoners returning voluntarily will also receive financial assistance to facilitate reintegration. On the continent prisoner transfer agreements are becoming more commonplace in an effort to address prison overcrowding. In January 2015 Zambia signed transfer agreements with Malawi, Zimbabwe, Namibia, Botswana, Mozambique and Mauritius. South Africa, the country with the largest prison population and with some 4500 foreign nationals in its prisons, has, however, remained resistant to the idea. Transfer agreements holds some potential for reducing overcrowding, but the impact will remain limited and the advantage is perhaps more for prisoners who will at least be closer to their families.

Conclusion

Whether prisons develop along the low, middle or high road will by and large depend on the ability of states to adhere to the rule of law, ensure good governance and have the resources available to fund well-functioning prison systems. Well-run prisons are expensive not only to build, but also to ensure that prisoners receive what they are entitled to under international law. All is, however, not doom and gloom and prisons, even in the poor countries, do have the potential to address at least some of the most basic challenges that would make a difference to conditions of detention. The first point is to reduce the need for prisons by providing alternatives through non-custodial sentences (e.g. Mozambique, Kenya and Tanzania) and parole systems (e.g. South Africa). This can be further enhanced by reducing awaiting trial populations by setting time limits on pre-trial detention and also decriminalising certain petty offences, such as loitering. Secondly, where imprisonment is unavoidable, prisons need to be made more efficient and cost-effective. It is generally under-acknowledged that prison systems have access to a vast pool of cheap labour and access to land, and this is not always sufficiently recognised. There is little preventing prison systems to be self-sufficient in a number of areas such as food, clothing and furniture production. Thirdly, prison administrations need to actively seek low-cost low-tech solution to long-standing problems. A good example is energy. Using firewood to cook meals for thousands of prisoners every day is simply not sustainable – eventually there will be no more trees. Yet advances made in using solar energy to prepare food on a large scale can reduce if not eliminate the reliance on firewood.

It is unfortunately the case that prison administrators have been rather conservative and timid in looking for innovative solutions and prefer to idealise the large expensive prisons found in developed countries. What we need is to think differently about prisons and perhaps we may find that we can almost do without the ‘detestable solution’.

• ¹‘The African gateway for UK cocaine’ The Telegraph, 10 June 2007, http://www.telegraph.co.uk/news/worldnews/1554135/The-African-gateway-for-UK-cocaine.html
• ²Judith Verweijen “The disconcerting popularity of “justice populaire” in the Eastern DR Congo” 2 December 2013, http://blogs.lse.ac.uk/jsrp/2013/12/02/the-disconcerting-popularity-of-justice-populaire-in-the-eastern-dr-congo/
• ³Foreign national prisoners, https://www.justice.gov.uk/offenders/types-of-offender/foreign

Prof Lukas Muntingh is co-founder and Project Coordinator of the Civil Society Prison Reform Initiative CSPRI and holds a Masters Degree (Sociology) from Stellenbosch University. He has been involved in criminal justice reform since 1992 and was Deputy Executive Director of Nicro prior to joining CSPRI full-time.

He has worked in Southern Africa and Central Asia on child justice, prisoners’ rights, preventing corruption in the prison system, the prevention and combating of torture, and monitoring legislative compliance. He has published extensively and presented at several conferences. His current focus is on the prevention and combating of torture and ill treatment of prisoners and detainees.

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