Liberia Publications

A sort criterion
30 Days/Dae/Izinsuku March 2010

Download this month's newspaper articles on the topics of governance & corruption; parole & sentencing; prison conditions; overcrowding; security & escapes; South Africans imprisoned abroad and prison-related articles in other parts of Africa.

Oatile v The Attorney General 2010 (1) BLR 404 (HC)

Headnote: The plaintiff claimed constitutional damages for the failure by the State to try him within a reasonable period of time. He alleged that the delay of over 12 years from the date of his arrest to the date of commencement of his trial violated his right to be tried within a reasonable period of time, as contained in s 10(1) of the Constitution of Botswana. He was first arrested and charged with murder in February 1995. The charge was withdrawn in 1998 but he was recharged in 2004. He was brought to trial in 2007, at the conclusion of which he was acquitted. The defendant offered no explanation for the delay in the commencement of the plaintiff's trial. Held: (1) Whether a particular delay was unreasonable depended on the circumstances of the case. Relevant factors included the length of the delay, the crime charged, the availability of witnesses, the efforts made to prosecute expeditiously and the availability of judges or magistrates. Busi v The State [1997] B.L.R. 69, CA at p 72E-F applied. (2) The withdrawal of the charge did not operate against the plaintiff. Sejammitlwa and Others v The Attorney-General and Others [2002] 2 B.L.R. 75, CA and In re Mlambo 1992 (4) SA 144 (ZS) at pp 151A-C and 151J-152A applied. (3) A period of over 12 years qualified as an inordinate delay in bringing the plaintiff to trial. (4) There was no explanation for why the plaintiff was not brought to trial subsequent to his release in 1998 or earlier and the delay was accordingly unreasonable. (5) The 'redress' to which an applicant was entitled for violation of his fundamental rights, in terms of s 18(1) of the Constitution of Botswana, included, where appropriate, an award of constitutional damages. Sekgabetlela v The Attorney-General and Another (Civ Case 954/07), H unreported at paras [45] and [46] followed; Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC) and Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at p 821 para 60 applied. (6) In the present case, the nature and circumstances of the breach of the plaintiff's constitutional rights justified his seeking to avail himself of his constitutional remedy. MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) at p 491 paras 26-27 applied. (7) In the present case, an appropriate award of constitutional damages was A an amount of P100 000. Merson v Cartwright and Another [2005] UKPC 38 at para 18 applied.

Nkunga v The Attorney General 2010 (1) BLR 342 (HC)

Headnote: The plaintiff was a security guard who manned the front gate of the Botswana Power Corporation Training Centre. A number of police officers proceeded through the the gate without stopping and registering the necessary particulars, as required by the security procedures at the gate. When the plaintiff insisted that they comply with the procedures, they assaulted him by strangling him, pushing him to the ground and beating him up. After assaulting him, they arrested him on a charge of common nuisance and detained him for a day. The plaintiff instituted action for damages for assault and for wrongful arrest and detention. In defence of the action, the defendant gave a completely different account of events at the front gate. Held: (1) On the evidence, the plaintiff had established that the assault was deliberate and unlawful. (2) Further, the arresting officer had no reasonable grounds for suspecting that the plaintiff had committed the offence of common nuisance and his arrest and subsequent detention were consequently unlawful. (3) During the assault, the plaintiff sustained injuries from his head to thigh regions. He was examined by a doctor three days later but the doctor considered it unnecessary to prescribe any treatment or medication for his injuries. In the circumstances, an appropriate award of damages for the assault was an amount of P7 500. Mosaninda v The Attorney-General [1994] B.L.R. 411 considered. (4) The plaintiff was detained for less than 24 hours, he received an apology from the station commander and there were no aggravating features that appeared from the evidence. In the circumstances, an appropriate award of damages for the unlawful arrest and detention was an amount of P7 500. Tlharesegolo v The Attorney-General [2001] 2 B.L.R. 730, Mosaninda v The Attorney-General [1994] B.L.R. 411, Onkabetse v The Attorney-General and E Others [1989] B.L.R. 120 and Kebafetotse v The Attorney-General [2004] 1 B.L.R. 419 considered.

State Violence in Chad: A statistical analysis of reported prison mortality in Chad's DDS prisons

This report documents the death of prisoners inside Chad's Direction de la Documentation et de la Securite (DDS) prisons between 1982 and 1990, and the extent to which former Chadian president Hissene Habre and senior officials within his government are responsible for human rights violations committed by the DDS. The report presents evidence which is consistent with the hypothesis that the policies and practices of Hissene Habre and senior DDS officials, whom Habre appointed, contributed to deaths in custody on a level substantially higher than the adult mortality rate of Chad at the time. The analysis tests the hypotheses that Habre had a superior-subordinate relationship with senior DDS officials and had knowledge of their actions, which resulted in substantial deaths in custody.

30 Days/Dae/Izinsuku February 2010

Download this month's summary of articles on governance and corruption; parole and sentencing; prison conditions; South African's imprisoned abroad; security and escapes, etc.

Mongakgotla v The Attorney General 2010 1 BLR 13 CA

"Headnote: The appellant was cautioned, and then arrested and detained, on suspicion of having been involved in the commission of a robbery that was still under investigation. He claimed damages for his alleged unlawful arrest and detention. The High Court found that the arresting officer had harboured a reasonable suspicion that the appellant was involved in the commission of the robbery and dismissed the appellant's action. The facts upon which the finding of 'reasonable suspicion' was based were that the arresting officer had been given a tip-off that the robbery was committed by members of the Mongakgotla family, the appellant had been pointed out as a member of the Mongakgotla family, and the appellant had refused to answer questions by the police while they were conducting their investigation. The appellant appealed against the High Court's decision. Held: (1) The suspicion of the arresting officer was not reasonable because it was based on nothing more than a tip-off that the robbery was committed by members of the Mongakgotla family and a pointing out of the appellant as a member of the Mongakgotla family. (2) As a cautioned suspect the appellant was entitled to refuse to answer questions and his silence did not strengthen the reasonableness of the suspicion at the time of his arrest. (3) It followed that the appellant's arrest and detention for 16½ hours was G unlawful. (4) The appellant spent the night in a dirty and smelly police cell, and the blankets were dirty. He was unable to sleep at all and was provided neither with access to a shower nor with food. (5) In the circumstances an amount of P5 000 would adequately compensate the plaintiff for his injuria.

Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Mission to the Republic of Equatorial Guinea

"... a comprehensive law prohibiting torture and providing for the prosecution of torturers was adopted in 2006. However, on the basis of discussions with public officials, judges, lawyers and representatives of civil society, interviews with victims of violence and with persons deprived of their liberty, often supported by forensic medical evidence, he found torture by the police to be systematic in the initial period after arrest and during interrogation, including by suspension, severe beatings, electroshocks, etc. A number of cases of corporal punishment were reported to the Special Rapporteur in Malabo, Black Beach and Bata prisons. The Special Rapporteur further observes that neither safeguards against ill-treatment, nor complaints mechanisms are effective and that perpetrators of torture and ill-treatment are not prosecuted, with the exception of one case in 2007. On the contrary, in many cases, victims of torture experience a total lack of justice, which, combined with the physical and psychological consequences of ill-treatment and the absence of any rehabilitation or compensation mechanism, may cause ongoing suffering that might amount to inhuman treatment."

ICRC Annual Report 2010 Algeria

International Committee of the Red Cross, Annual Report, 2010: Algeria. The ICRC carries out visits to people held in places of detention run by the Ministry of Justice and to people remanded in custody in police stations and gendarmeries.

Human Rights and Human Dignity in Madagascar

This report by Hans Maier published by the Human Rights Office of the Pontifical Mission Society provides on overview of the human rights situation in Madagascar, including prison conditions and remand detention.

Report of the International Commission of Inquiry mandated to establish the facts and circumstances of the events of 28 September 2009 in Guinea

The Commission is in a position to confirm the identity of 156 persons who were killed or who disappeared: 67 persons killed whose bodies were returned to their families, 40 persons who were seen dead in the stadium or in morgues but whose bodies have disappeared, and 49 persons who were seen in the stadium but whose fate is unknown. It confirms that at least 109 women were subjected to rape and other sexual violence, including sexual mutilation and sexual slavery. Several women died of their wounds following particularly cruel sexual attacks. The Commission also confirms hundreds of other cases of torture or of cruel, inhuman or degrading treatment. Dozens of persons were arrested and arbitrarily detained in the military camps of Alpha Yaya Diallo and Kundara and in the barracks of the riot police (CMIS), where they were tortured. The security forces also systematically stole demonstrators’ property and engaged in looting. The Commission considers that, during the abuses on 28 September and the immediate aftermath, the Guinean authorities deliberately embarked on destruction of the traces of the violations committed, with the aim of concealing the facts: cleaning of the stadium, removal of the bodies of the victims of executions, burial in mass graves, denial of medical care to victims, deliberate alteration of medical records and military take-over of hospitals and morgues. This operation created a climate of fear and insecurity among the population. The Commission therefore believes that the number of victims of all these violations is quite probably higher.

Roundtable Discussion on the White Paper on Corrections in South Africa Roundtable Discussion on the White Paper on Corrections in South Africa

In March 2005 the Department of Correctional Services released the White Paper on Corrections in South Africa which articulated a new 20-year vision for the correctional system. This vision articulates an antithesis of what was inherited from the previous regime. But it does raise serious questions about its attainability. Nearly five years into the implementation of the White Paper, results in respect of rehabilitation services to prisoners remain modest. The lack of budgetary alignment to the vision of the White Paper has also been remarked upon by Parliament. In many regards, conditions of detention fail to meet the minimum standards set out in the Constitution and the Correctional Services Act. This roundtable discussion focussed on a critical examination of the White Paper as a policy document and also on progress towards realising the objectives of the White Paper. Some may argue that the White Paper has made a valuable contribution by providing the Department with a new purpose and paradigm, whilst others state that meeting the minimum standards of humane detention is a pre-requisite for large scale rehabilitation services. Did the ambitious vision of the White Paper set the Department up for failure?

Roundtable discussion on oversight over the prison system Roundtable discussion on oversight over the prison system

This roundtable discussion, hosted by CSPRI, is the first in a series of three, and included representatives from Parliament, the Judicial Inspectorate for Prisons, SAHRC, media and civil society organisations. The discussions focused on the different oversight mandates, successes achieved in exercising oversight as well as the problems faced. Strategic priorities in prison oversight were identified by the participants.

Roundtable Discussion on the 2008/9 Annual Report of the Judicial Inspectorate for Correctional Services Roundtable Discussion on the 2008/9 Annual Report of the Judicial Inspectorate for Correctional Services

The second, in a series of three roundtable discussion, focused on the 2008/9 Annual Report of the Judicial Inspectorate for Correctional Services. Since its establishment in 1998 the Inspectorate has made a valuable contribution to promoting and protecting prisoners’ rights and South Africa. The Inspectorate has the mandate to inspect prisons in order that the Inspecting Judge may report on the treatment of prisoners and conditions in prisons. After nearly a decade in existence, it is necessary to examine how the Inspectorate has fulfilled its mandate and how oversight over the prison can be improved in cooperation with other stakeholders, such as civil society, Parliament and the academic community. The discussion focused on the state of correctional centre and the prevention of human rights violations.

Reducing Prison Violence: Implications from the literature for South Africa Reducing Prison Violence: Implications from the literature for South Africa

Few would argue that prisons are violent places and South Africa is no exception. The consistently high number of deaths and complaints of assaults recorded by both the DCS and the JICS over several years indicate that violence is a “normal” feature of the South African prison system. Amongst all the strategic objectives towards transformation of the prison system and the distractions, the most important objective of any correctional system is to detain prisoners under safe and humane conditions. This, very explicitly, means that individuals, when imprisoned, must not only be safe but they must also feel safe. Regrettably this is not the case and thus the need for this paper to take a closer look at violence in South Africa’s prison system. This is done by reviewing the literature on prison violence to gain a deeper understanding of the problem and also to establish whether there have been any effective measures implemented elsewhere to reduce prison violence. Based on these a number of recommendations are made to improve prison safety in South Africa.

Ex-prisoners' Views on Imprisonment and Re-Entry Ex-prisoners' Views on Imprisonment and Re-Entry

In the past 15 years much research has been conducted on the prison system in South Africa focusing on governance, law reform and human rights. It is, however, of particular concern that the voices of prisoners and ex-prisoners had not been heard in the current discourse, one that has been dominated by the Department of Correctional Services (DCS), Parliament, service delivery organisations, academics and human rights activists. In essence, there has been a lot of talk about prisoners and ex-prisoners but there has been little listening to prisoners and ex-prisoners taking place.

A Societal Responsibility: The role of civil society organisations in prisoner support, rehabilitation and reintegration A Societal Responsibility: The role of civil society organisations in prisoner support, rehabilitation and reintegration

There is a growing number of civil society organisations in South Africa working with offenders and prisoners focusing on prisoner support, rehabilitation and reintegration, reflecting in many ways the ‘societal responsibility’ that the White Paper on Corrections advocates for. These organisations provide services broadly aimed at promoting offender reintegration and reducing the chances of re-offending.

30 Days/Dae/Izinsuku November 2009

This issue reports on topics around corruption and governance; sentencing and parole, health issues and on reports from other African countries.