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The Socio-Economic Impact of Pre-trial Detention in Kenya, Mozambique and Zambia

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Abstract

The presumed link between the rule of law and development suggests that an operational justice system is key to development. The research sought to understand and quantify how the decision to detain an accused person affects his or her socio-economic situation. Data was collected in Kenya, Mozambique and Zambia. The findings suggest that the use of the coercive power of the state exercised through the deprivation of an individual’s liberty has serious socio-economic consequences. While detention pending trial is justifiable sometimes, we argue that it is over-used, frequently resulting in excessively long detention. The deprivation of liberty interferes with the ability of individuals to be agents of their own development, infringing on socio-economic rights of individuals and their dependents. States can justify such infringements only if their coercive power is used within the ambit of democratic and rights-respecting laws complying with human rights standards.

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Notes

  1. World Bank, ‘Rule of Law and Development’ http://go.worldbank.org/9OTC3P5070. Accessed 26 January 2016.

  2. For a discussion of definitions of the rule of law in the development context, see World Bank, ‘Rule of Law as a Goal of Development Policy, http://go.worldbank.org/DZETJ85MD0. Accessed 26 January 2016.

  3. See inter alia Law and Development Movement, World Bank Note, http://go.worldbank.org/F535AXQWE0. Accessed 26 January 2016. T. Ginsburg, “Does Law Matter for Economic Development? Evidence from East Asia” Law & Society Review, Vol. 34, No. 3 (2000), pp. 829-856, p. 829.

  4. Ginsburg 2000, p. 830.

  5. Ginsburg 2000, p. 830.

  6. World Bank, World Bank Development Report 2011, April 2011, http://siteresources.worldbank.org/INTWDRS/Resources/WDR2011_Full_Text.pdf. Accessed 21 January 2011.

  7. OHCHR 2006, p. 15.

  8. OHCHR 2006, p. 15.

  9. Sen 2000.

  10. International Covenant on Socio-Economic and Cultural Rights 1966, Art 2(1). See also ICSECR ‘General Comment 3 1991, para 7.

  11. UNGA A/RES/41/128 (UN Declaration on the Right to Development) Art 1.

  12. International Covenant on Civil and Political Rights (ICESCR) 1966, Articles 9–15.

  13. Preamble to the ICSECR. General Comment 3 on the ICSECR para 8.

  14. International Covenant on Civil and Political Rights 1966, Articles 9–15.

  15. A/67/278 para 50.

  16. Kenya and Zambia have ratified the ICESCR but not Mozambique.

  17. A peremptory norm is a fundamental principle from which no derogation is permitted. UN Human Rights Committee, General Comment 29, States of Emergency (article 4), CCPR/C/21/Rev.1/Add.11 (2001), and UN Human Rights Committee, General Comment 32: Right to Equality before Courts and Tribunals and to a Fair Trial, CCPR/C/GC/32 (23 August 2007), [54].

  18. UN General Assembly, Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/56/156, 3 July 2001, [34]. Articles 6 and 7 of the AChHPR reflect ICCPR safeguards, and the ACHPR has provided further guidance on the content of the right to fair treatment in the Resolution on the Right to Recourse and Fair Trial (Res.4 (XI) 92) and the Principles and Guidelines on Rights to a Fair Trial and Legal Assistance in Africa (see also, Rights International v Nigeria, African Commission on Human and Peoples Rights, Communication no. 215/98, [29]). See also, Rights International v Nigeria, African Commission on Human and Peoples Rights, Communication no. 215/98, [29].

  19. S v M (CCT 53/06) [2007] ZACC 18.

  20. For example Tanzania, see Peter Joseph Chacha v the United Republic of Tanzania, Application No. 003/2012, African Court of Human and Peoples’ Rights.

  21. Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) para 49.

  22. Liebenberg 2008, p. 155.

  23. Liebenberg 2008, p. 156 citing Ackermann J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others, para 54.

  24. Liebenberg 2008, pp. 158–159.

  25. UNDP-OSI Country Studies: The Socioeconomic Impact of Pretrial Detention available at http://www.undp.org/content/undp/en/home/librarypage/democratic-governance/access_to_justiceandruleoflaw/the-socioeconomic-impact-of-pretrial-detention/.

  26. All currency conversions were calculated in January 2015 when the full research reported was drafted.

  27. This is the median for the 75% of respondents who could provide detailed household income.

  28. http://www.worldbank.org/en/topic/poverty/overview

  29. Some 31% had one child, 13% had two children, 13% had three children, 16% had four children, and 9% had five or more children.

  30. UN Committee on ESCR General Comment No 14, UN Doc E/C/12/2000/4.

  31. Illnesses mentioned were diarrhoea and vomiting (15%), chest pains and pneumonia (12%), malaria (9%), skin diseases (6%), toothache (6%), weakness and headache (6%), backache (3%), and eye problems (3%).

  32. Malaria (17%), skin disease, rashes, “spores” (17%), chest complaints or pneumonia (13%), cold or flu or coughs (7%), typhoid (3%), diarrhoea (3%), tuberculosis (3%), eye problems (3%), ulcers (3%), fainted, or falling down (2%), headache (2%), spine and neck pains (2%), epilepsy (1%), joint pains (2%), cancer (1%), toothache (1%), high blood pressure (1%), asthma (1%) and allergy (1%).

  33. de Zayas 2001, pp. 67–121. Also de Zayas 2003, pp. 215–277. See also Case No. 305/1988 (Van Alphen v. The Netherlands) UN Doc. A/45/40, Vol. 2, Annex IX, Sect. M, para. 5.8: “The drafting history of Article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.” Nowak 1993, p. 172.

  34. UNCAT Art 1 “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

  35. (FC) and others (FC) v. Secretary of State for the Home Department (2004); A and others (FC) and others vs Secretary of State for the Home Department [2005] UKHL 71 para 33. See also R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147, 197–199; Prosecutor v. Furundzija ICTY (Trial Chamber) judgment of 10 December 1998 at paras 147-157.

  36. The monthly median income was reported to be US$ 80.00.

  37. All three jurisdictions allow for various forms of bail, bond and surety. However, in Zambia section 123 of the Criminal Procedure Code Act sets out offences that are not bailable. They include murder, treason, and any offence carrying a mandatory death penalty. Other offences are aggravated robbery and theft of motor vehicles if the accused has previously been convicted of the offence of theft of a motor vehicle. The State Security Act states that espionage is not a bailable offence. Lastly, people charged with offences related to drug trafficking or manufacturing of drugs under the Narcotic Drugs and Psychotropic Substances Act cannot be granted bail. (See Criminal Procedure Code Act No. 35 of 1993, as amended by Act No. 9 of 2005, Chapter 88 of the Laws of Zambia; Section 3 of the State Security Act No. 36 of 1969, as amended by Act No. 27 of 1985, Chapter 111 of the Laws of Zambia; and section 123(4) of the Criminal Procedure Code Act No. 35 of 1993, as amended by Act No. 9 of 2005, Chapter 88 of the Laws of Zambia. Section 43 of the Narcotic Drugs and Psychotropic Substances Act, No. 37 of 1993, as amended by Act No. 13 of 1994, Chapter 96 of the Laws of Zambia).

References

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Online Document

International and regional instruments and case law

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Domestic case law

  • A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56

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Acknowledgements

The research on which this article is based was made possible with support from Open Society Initiative for Southern Africa (OSISA), in partnership with Open Society Initiative for Eastern Africa (OSIEA), the Open Society Justice Initiative (OSJI) and the United Nations Development Programme (UNDP).

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  1. Africa Criminal Justice Reform, Dullah Omar Institute on Constitutional Law, Governance and Human Rights, University of the Western Cape, Robert Sobukwe Road, Bellville, 7535, South Africa

    Lukas Muntingh & Jean Redpath

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  1. Lukas Muntingh
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  2. Jean Redpath
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Correspondence to Lukas Muntingh.

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Muntingh, L., Redpath, J. The Socio-Economic Impact of Pre-trial Detention in Kenya, Mozambique and Zambia. Hague J Rule Law 10, 139–164 (2018). https://doi.org/10.1007/s40803-017-0062-1

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