Detention basically is the act of slamming restrictive measures on someone’s movement against his own free will. Law enforcement bodies all over the world practice this act in a bid to allow the due process of the law. In criminal matters, people are detained mostly upon the ‘reasonable suspicion’ of their having committed or being about to commit an offence for questioning and proper preparation for trial. This is generally called, Pretrial Detention.
Pretrial detention in many countries gives the cause for unsentenced prisoners making up the majority of the prison population. In many instances, such detainees are held for years before being judged not guilty of the crime with which they were charged. They even may be imprisoned for periods longer than the sentences they would have served had they been found guilty. This state of affairs does not only violate fundamental human rights norms, but also contributes significantly to prison over crowding, a problem that is itself at the radics of numerous additional abuses.
This article therefore examines the pretrial detention situation in Sierra Leone in juxtaposition with the constitutional provisions that make pretrial detention legal or illegal and how it affects the rights of the accused. The article further looks at the pretrial detention situations in other countries and in the end makes recommendations especially on how the miscarriages of pretrial detention can be ameliorated in Sierra Leone.
The 1991 constitution of Sierra Leone states without ambiguity in section 17(1) that no person shall be deprived of his personal liberty. However, people are detained before trials pursuant to section 17(1) f which makes it lawful for people to be deprived of their personal liberties. On many occasions, law enforcement bodies in this country, have tampered with the rights of accused persons whiles carrying out this provision.
The instances of gross violations of the rights of the accused are in their multitudes when you look at the pretrial detention situation in Sierra Leone. In Port Loko, a murder suspect was in custody for two months and ten days without being charged to court. In Moyamba, two brothers were held in remand for three years on allege charge for common assault. In another case, a suspect for manslaughter was detained for nineteen days without charging him to court.
Section 17 (3) a of the 1991 constitution states that any person arrested or detained shall be brought before court “within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences” and section 17 (3) b states that accused persons for ‘other offences’ be brought to court “within seventy two hours of his arrest…” this means such a suspect should spend a maximum of three days in detention without charging the matter to court.
International standards require that pretrial detention be used only if there is a demonstrable risk that the person concerned will abscond, interfere with the course of justice, or commit a serious offence. However, from what the SLCMP has observed in courts, together with the responses of people in our outreach programmes, bail is refused to people who fulfill these criteria and granted to people charged with heinous offences. This is mentioned with specific references to a public officer charged with corruption over one hundred thousand dollars, who was caught escaping into Guinea but was later granted bail in court and a parliamentarian charged with manslaughter too was granted bail. On the other hand, a journalist charged with just seditious libel was refused bail. Far from being against the bail grants of the two instances mentioned, the emphasis here is that the grant or refusal to bail should not be contingent on influences as was eminent in all three cases.
Relying on the presumption of innocence, defendants in criminal matters should normally be granted release pending trial. Articulating this principal, Article 9(3) of the International Covenant for Civil and Political Rights (ICCPR) provides that: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. In interpreting this provision, the UN Human Rights Committee has ruled that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Necessity is defined narrowly: “to prevent flight, interference with evidence or the recurrence of crime” or “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” In our courts, these criteria have on many occasions been ignored for the granting or refusal of bail.
This misnomer is further compounded by the fact that detained defendants are also victimized by long undue delays in criminal trials in this country. This act is overtly inconsistent with international human rights norms. Such delays violate the provisions of the ICCPR Articles 9(3) and 14(3) (C) which prohibit unreasonable protracted criminal proceedings. The unreasonable denial of pretrial release to criminal defendants and the excessive duration of criminal proceedings violate human rights, but combined together, they constitute a grievous affront to justice.
Additionally, the prison conditions in this country are concisely just inhumane. Medical facilities are very poor and grossly inadequate. They are vulnerable to starvation as police detainees get food from the prisons once a day . If unlawful pretrial detention is an abuse, then imagine when it is multiplied by keeping detainees in those squalid and unsanitary conditions.
In other parts of the world, pretrial detention remains to be a consistent threat to human rights norms. Latvia, Ukraine, and Kazakhstan have incarceration rates of 395, 406, and 496 per 100,000 of their populations respectively. Pretrial detainees in these countries like in Sierra Leone are often held in cramped conditions with poor standards of hygiene and health care; facilitating the spread of transmissible diseases throughout the prison population and into the population at large when infected prisoners are released.
In conclusion therefore, in as much as the miscarriages involved in pretrial detention in Sierra Leone constitute gross human rights violations, the SLCMP as a court monitoring programme believes that these abuses could be avoided. In the first place, the judiciary, media and civil society need to raise massive awareness among the people of Sierra Leone about the basic constitutional provisions regarding detention. This is important because in almost all cases, victims of unlawful detention are normally ignorant of the right to bail and the laws binding detention. There is also the unending imperative need to strengthen the judiciary, and in particular, increasing its size and efficiency. In so doing, unlawful detention problems cannot only be solved, but it will be a decisive step in handling the adverse undue delays in criminal trials.