Liberia Publications

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Constitutionality of Criminal Procedure and Prison Laws in Africa: Zambia
Author: Jean
Published: Oct 01, 2016

Zambia’s Constitution contains an enforceable Bill of Rights, one which mainly lists civil and political rights that constrain state power. Having human rights enshrined in an enforceable manner in the Constitution is important, because the validity of other laws is measured by their conformity to the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa Kenya 2
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system. Its notable novel provisions include the entrenchment of the rights to fair trial and habeas corpus and the separation of criminal investigations and prosecutions under two independent systems. The country’s penal and criminal procedure laws predate the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Kenya
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system.This study identifies conformity gaps between, on the one hand, constitutional protections of the rights of arrested, accused and detained persons and, on the other, statutory criminal procedure requirements. The starting-point is the Constitution and, accordingly, the study is concerned with provisions in criminal procedure law that are directly or indirectly within the scope of application of an explicit right in the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Côte d’Ivoire
Author: Jean
Published: Oct 01, 2016

The adoption by referendum of Law No. 2000.515 of 1 August 2000 establishing the Constitution of the Republic of Côte d’Ivoire must be understood against the political backdrop of that time. It resulted from the need to restore state’s institutions after the coup of 24 December 1999 and to prepare for the presidential election of October 2000. Many national and international observers agree that the Ivorian Constitution of 2000 is an essential text establishing minimum standards. Observers also consider that the Constitution broadly incorporates the main principles established by the conventions and treaties that Côte d’Ivoire has signed since 1960. In criminal matters, none of the major pieces of legislation (the CCP, the CC and the PA Decree) has been modified and updated in the light of the new Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Burundi
Author: Jean
Published: Oct 01, 2016

The purpose of this study is to briefly examine major developments in Burundi’s criminal procedure legislation and prison laws since the adoption of its 2005 Constitution and to assess how these developments may have impacted on human rights. In effect, this study seeks to understand whether subordinate legislation in Burundi is in line with constitutional provisions and international standards relating to procedural safeguards for arrested and detained persons.

Constitutionality of Criminal Procedure and Prison Laws in Africa A comparative study of Burundi, Côte d’Ivoire, Kenya, Mozambique and Zambia
Author: Jean
Published: Oct 01, 2016

This study reviews 41 rights of arrested, accused and detained persons under Burundian, Ivorian, Kenyan, Mozambican and Zambian law. These countries were chosen because they represent Anglophone, Francophone and Lusophone Africa as well as countries that have a civil law and common law tradition. The study begins by reviewing 17 rights of those arrested and detained in police custody; it goes on to examine 18 rights of accused persons; and ends by considering six rights of those detained in prison on remand or as sentenced prisoners. Each right is examined from three angles: first, whether it is recognised under international human rights law; secondly, to what extent the right is enshrined in the domestic constitution of the jurisdiction under review; and thirdly, to what extent the right is upheld and developed in subordinate legislation.

Formalising the role of paralegals in Africa: A review of legislative and policy developments
Author: Jean
Published: Aug 31, 2016

Paralegals have an important role to play in criminal justice systems throughout Africa. In many countries the effective use of paralegals is inhibited by a lack of formal recognition. Changes to domestic legislative frameworks are necessary to empower paralegals in their work with persons in conflict with the law at police stations, court rooms and prisons.It is hoped that this report will serve as an impetus for debate and advocacy on this important issue. This report reviews the work and legal framework of paralegals in 11 countries, being Burundi, Kenya, Liberia, Mali, Nigeria, Sierra Leone, South Africa, South Sudan, Tanzania, Uganda and Zambia.

African Innovations in Pre-trial Justice
Author: Jean
Published: Aug 01, 2016

This review seeks to showcase innovative interventions to reduce pre-trial detention in African countries, so that they may be adapted for use in other low and lower-middle income countries.

Submission to the UN Human Rights Committee: Overview of cross cutting issues in Alternate Reports on South Africa
Author: Jean
Published: Mar 01, 2016

This overview of cross cutting issues emanates from five alternate thematic reports submitted by civil society organisations (the Alternate Reports) in response to the Initial Report by South Africa (the State Report), to be reviewed by the UN Human Rights Committee during its 116th session. The Alternate Reports which provided the basis for this overview are:  Recognition of Civil and Political Rights: A continued struggle for Transgender and Intersex Persons in South Africa  Shadow Report on Participatory Democracy to South Africa’s State Report and their Responses to the List Of Issues On The International Covenant On Civil And Political Rights (ICCPR)  Thematic Report on Criminal Justice and Human Rights in South Africa  Thematic Report on the Rights of Migrants and Asylum Seekers in South Africa  Thematic Report on Violence Against Women and LGBTI Persons in South Africa

Constructing pre-trial detention indicators for African contexts: Problems and proposals
Author: Jean
Published: Nov 04, 2015

This discussion paper arose from the conundrum faced by a paralegal organisation working in an African country in demonstrating both that pre-trial detention is a problem in that country, and that their work has an impact on the problem. The indicators currently employed by states and organisations relating to pre-trial detention have a range of shortcomings in the African context. These shortcomings need to be understood in interpreting indicator values. Indicators should be adjusted, and additional indicators should be incorporated into data collection practice in order to provide a more complete and accurate picture of pre-trial detention in Africa. This paper is intended as a starting point for a broader discussion of the pitfalls and possibilities for the development of indicators in relation to pre-trial detention in Africa

Constructing pre-trial detention indicators for African contexts: Problems and proposals
Author: Jean
Published: Nov 04, 2015

This discussion paper arose from the conundrum faced by a paralegal organisation working in an African country in demonstrating both that pre-trial detention is a problem in that country, and that their work has an impact on the problem. The indicators currently employed by states and organisations relating to pre-trial detention have a range of shortcomings in the African context. These shortcomings need to be understood in interpreting indicator values. Indicators should be adjusted, and additional indicators should be incorporated into data collection practice in order to provide a more complete and accurate picture of pre-trial detention in Africa. This paper is intended as a starting point for a broader discussion of the pitfalls and possibilities for the development of indicators in relation to pre-trial detention in Africa

Arrested in Africa: An exploration of the issues
Author: Jean
Published: Nov 01, 2015

Recent research and advocacy efforts have drawn attention to the excessive use of and prolonged pre-trial detention in Africa. At any given moment there are roughly 1 million people in Africa’s prisons. Far more move through prisons each year. Their stay in prison, regardless of duration, starts with being arrested. Substantially more people are arrested than those who end up in prison for pre-trial detention. Pre-trial detention figures are thus a poor indicator of contact with the criminal justice system. The purpose of arrest and subsequent detention of a suspect is essentially to ensure the attendance of the person in court or for another just cause. The police’s powers of arrest are, in theory, curtailed to the extent that the arresting officer must be able to provide reasons for the arrest and continued police detention. Police officials have considerable discretion in executing arrests, especially when arresting without a warrant. This exploratory report focuses on arresting without a warrant and starts off with setting out the legal requirements in this regard by way of a case study. In order to understand current arrest practices, the report provides a brief description of the history of policing in Africa and concludes that much of what was established by the colonial powers has remained intact, emphasising high arrest rates, a social disciplinarian mode of policing, supported by myriad petty offences that justify arrest without a warrant. This combination enables widespread corruption and results in negative perceptions of the police. The report further argues that given the wide discretionary powers of the police to arrest without a warrant, it follows that not all people are at an equal risk of arrest, but rather that it is the poor, powerless and out-groups that are at a higher risk of arrest based on non-judicial factors. The report concludes with a number of recommendations calling for further research, decriminalisation of certain offences and restructuring of the police in African countries.

Submission to South Africa's Parliament - 2015 strategic planning session
Author: Gwen
Published: Sep 21, 2015

This submission to the South African parliamentary Portfolio Committee on Justice and Correctional Services' strategic planning session addresses the issues of long periods of pre-trial detention, low prosecution rates, the independence of the Judicial Inspectorate for Correctional Services, human rights abuses in prison, sentencing reform and effective prison oversight.

Journal Article: Unconscionable and irrational: SAPS human resource allocation
Author: Jean
Published: Sep 01, 2015

The Khayelitsha Commission revealed that areas that are predominantly populated by people who are poor and black are systematically allocated only a small fraction of the average per capita allocation of police personnel in the Western Cape. These areas also suffer among the highest rates of murder and serious violent crime in the province. The allocation of human resources to policing impinges on various constitutional rights. Given the inequity and irrationality apparent in the allocation of police personnel, the Khayelitsha Commission recommended that this method be urgently revised. This article reviews the evidence heard on the allocations and the method currently used to allocate police personnel, suggests an alternative method, and calls on the government to heed the recommendation of the Khayelitsha Commission that the state urgently revise its method of allocation of policing resources.

Submission to the Portfolio Committee on Justice and Correctional Services
Author: Jean
Published: Aug 18, 2015

This submission deals with South Africa’s performance in relation to, and compliance with, international standards with reference to offender management, offender rehabilitation and independent monitoring, as was requested by the Portfolio Committee on Justice and Correctional Services (the Portfolio Committee).

Pocket Guide to Arrest and Detention in Malawi
Author: Jean
Published: Jul 31, 2015

This guide is for anyone who needs a quick reference to the laws around arrest and detention in Malawi. This may include police, court clerks, prosecutors, magistrates, paralegals and detainees. First there is an orientation to the criminal justice system and a diagram and summary of what happens in Malawi around arrest and detention, page 1. The main part of the book focuses on what the Criminal Procedure and Evidence Code says. It starts with when and how arrest can happen and possibilities for release at the police station, page 4. This is followed by a section on how things happen in court and how people can be released by the court, page 12. There are special sections on the arrest and release of children, pages 7 and 11. There is also a list of children’s offences that are considered serious, see page 34, and there is a section on the maximum times allowed for the commencement and duration of trial, page 16. The rights of every person in Malawi, as well as the specific rights of those who have been arrested and detained are described, pages 18 - 21. The meanings of legal words can be found in the glossary near the back, page 22. At the very back is a long list of all the offences for which someone can be arrested in Malawi. These offences are divided into those that need a warrant for arrest, and those that do not, page 26