We Need a Reset: Pre-Trial Detention is Going from Bad to Worse

Pre-trial detention (aka remand prison) is when someone is detained by the state while awaiting trial to determine whether they are innocent or guilty of a crime.

The challenges of Namibia’s pre-trial detention system are manifold, and mostly rooted in a lack of resources.

For example, understaffing translates into delays everywhere because of overflowing dockets at the police, prosecution, and judiciary.

Namibia’s legal framework hinges strongly on due process, with extended criminal justice guaranties for defendants.

In practice, however, our criminal justice system is heavily weighted on the crime-control side, and once an accused is in custody, their rights are stretched beyond limits.

At the end of 2021, Namibia had about 4 800 detainees in remand custody but only about 3 800 convicted inmates in correctional facilities.

At the time, Namibia’s remand rate was 185/100 000 citizens.

This is the highest rate in Africa, where the average is about 33/100 000.

OVERCROWDING

The Namibian Police, which hosts about 95% of remand detainees – for various reasons, the remainder are placed with Namibian Correctional Service (NCS) at the Windhoek Correctional Facility – is ill-equipped for this task.

Custody, other than within the remit of the 48-hour rule (article 11 [3] of the Constitution), does not form part of the police mandate.

In terms of our criminal justice framework, if an accused is remanded in custody, this should be done by the correctional service.

But after Independence, the criminal justice system initially retained the existing distribution of labour between the police and (then) prisons.

However, what was possibly thought of as provisional has been perpetuated.

In the meantime, an understanding has been reached that remand detainees will eventually be shifted under the authority of NCS but has yet to happen.

Further, the police’s detention facilities have never been adapted to meet the steadily increasing number of remand detainees, and the bigger police stations (A stations) experience dramatic overcrowding.

FRUSTRATIONS

Over the last three decades, the infrastructure of police holding cells has deteriorated to an unimaginable degree.

Ablution facilities, albeit also caused by the actions of frustrated inmates, are blocked, destroyed, or don’t work properly. The unhygienic conditions are unbearable.

Cell space is scarce and below internationally accepted standards – it can go down to as little as 1m2 per detainee.

With ablution facilities inside cells, and often no curtain or other divider between the communal cell and the toilet, almost nothing that happens in a cell can escape the public eye.

Lack of privacy for a short while, such as the 48-hour period from arrest
until appearing before a magistrate, is one thing.

However, detainees in Khomas Region police facilities, for instance, stay in remand detention for several months on average.

With the exception of the Windhoek Police Station, and Windhoek Correctional Facility, they have no actual time outside.

What is most disheartening is that these circumstances were first highlighted by the Special Rapporteur of the African Commission on Human and Peoples’ Rights (ACHPR) in a report on a 1999 visit to Namibia.

This was followed by various reports by the Ombudsman.

ALTERNATIVES

It would be too easy to blame the police for the situation.

However, in order to reduce the number of detainees in police remand facilities, could the police not marginally extend the use of written notice (section 56 of the Criminal Procedure Act), or admission of guilt fine (section 57).

A systemic approach is needed to effectively reduce overcrowding and harm.

All players need to work together. A broader use of alternative measures for ensuring attendance of the accused in the magistrate’s court is needed.

Bail amounts need to be determined against affordability, especially for non-violent crimes.

The release of the accused into the community, while equipped with an electric bracelet, could be another alternative.

Lower numbers of remand inmates would in itself contribute to alleviating the mental and physical harm of detainees.

Mental harm also occurs because of a lack of human services at police stations. Officers find themselves under operational and organisational stress because of extreme understaffing.

It is currently normal that A stations in the Khomas Region with a nominal staff complement of more than 500 staff have barely 200 active members in service.

It is therefore unrealistic to expect police officers to provide any substantial degree of human service to remand detainees.

One or two cell guards responsible for 100 or more inmates are not able to advise, support, console, refer, or otherwise assist detainees with their problems and crises.

The police, lacking the mandate for extended detention, also don’t plan, and/or budget for commensurate capacity.

UNIFIED APPROACH

A reset of the system is urgently required, while detention beyond the 48-hour period should be placed under the NCS’s authority.

There are many recommendations for improvement but no single proposition seems to hold the ‘silver bullet’.

Theoretically, with so many players on board – police, corrections, prosecution, judiciary (the magistracy), line ministries, government and legislature – without a central organising authority to coordinate the various stakeholders under a common goal, no effective progress can be expected any time soon.

A government task force located in the office of the prime minister might be the right initiative here.   

• Stefan Schulz is a lecturer and researcher in the department of social sciences at Nust (insights used for this opinion are sourced from an ongoing research project on pre-trial detention in Namibia); request more information via e-mail: sschulz@nust.na