Measuring Pre-trial Detention in Africa April 25-26, 2013, Bogotá, Colombia Jean Redpath Promoting Pre-trial Justice in Africa Civil Society Prison Reform Initiative (CSPRI) Community Law Centre, University of the Western Cape 1

Number of persons held pre- trial in prison at month end, South Africa,

Proportion of persons in prison held pre-trial at month end, South Africa,

Pre-trial imprisonment rates Pre-trial imprisonment rates are used to show the rate of incarceration of the total population and thus gives a measure of the propensity of the state to incarcerate pre-trial. These can be misleading particularly in Africa where many people are held pre-trial in non-prison places of detention for extended time periods. This is a “snapshot” measure which uses the number in pre- trial detention as at a particular date. Does not indicate duration of detention. Most useful for comparing countries. NOTE: it may be preferable to use adult populations rather than total populations 4

African regional pre-trial detention rates 5

Duration of pre-trial detention Measuring the average (mean) or median length of pre-trial detention is fraught with difficulty in Africa, mostly due to problems with consistent recording of information on dates of releases. In South Africa the Department of Correctional Services publishes the proportion of people held in prison for various time periods 0-3 months, 3-6 months, 6-12 months, etc. as at a particular date, usually 31 March of the year under consideration. 6

Number of pre-trial detainees held for various durations, South Africa, 31 March

PROBLEM None of the measures above capture the kind of pre-trial detention which is increasingly prevalent in Africa, which is a form of detention without trial I.e. Arbitrary or political arrests leading to relatively “short” periods of pre-trial detention often followed by release without trial ever occurring. In Zimbabwe “human rights defenders” and the political opposition are harassed and their work disrupted by targeted periods of incarceration In South Africa changes to bail law mean that for many, bail applications will only be heard more than two weeks after arrest, meaning most spend at least 2 weeks pre-trial. Half of all cases end in withdrawal. In many African countries political control is exerted through the criminal justice system 8

Pre-trial detention “Exposure” as an appropriate pre-trial detention indicator for Africa This can be used as n alternative measure where: The total number of pre-trial detainees is known at defined periods e.g. at the end of each quarter. The total admissions to pre-trial detention during those defined periods e.g. per quarter are known. The total population of the country is known. 9

Quarterly exposure number The “Quarterly exposure number” is simply: The total in pre-trial custody at the beginning of the quarter plus pre-trial admissions during the quarter E.g. in Malawi typical numbers might be for Quarter 1: in pre-trial detention as at 1 January admitted 1 January to 31 March Quarterly exposure = ( in pre-trial admissions) = exposed to pre-trial detention 10 Total in custody at beginning of quarter New admissions during quarter

Quarterly exposure rate Rate = Quarterly exposure number/population E.g. in Malawi total population is 14 million Exposure number is Quarterly exposure rate 278 per total population exposed to pre-trial detention If one uses adult population (6 million) Quarterly exposure rate = 650 per adult population OR 6,5 per adults If one uses adult male population (3 million) Just over 1 in every 100 adult males exposed to pre-trial detention per quarter 11

Change in exposure number Change = Quarter 2 - Quarter 1 Quarter 2 – Quarter 1 = (Q2Number_ptd _beg + Q2admissions) – (Q1Number in ptd_beg + Q1admissions) = ([(Q1Number_ptd + Q1admissions - Q1releases) + Q2 admissions] - [Q1Number_ptd + Q1admissions] ) = Q2 admissions - Q1 releases An increase in exposure number can mean either an increase in the number of people held for more than three months OR more people being admitted to pre-trial detention 12