Hipótesis

The first all African Conference on Prison Conditions held in Kampala, Uganda in 1995 adopted a Resolution to extend the rights set forth in articles 5²⁹⁹ and 6³⁰⁰ of the African Charter to the detainees in Africa.³⁰¹ The Resolution also recommended for the appointment

296 Robben Island Guidelines, Article 33.

297 Robben Island Guidelines, Articles 34, 35, 36, 37, 38, 42and 45.

298 Robben Island Guidelines, Articles 47 and 48.

299 African Charter, Article 5 provides for the right to the respect of the dignity inherent in human being.

300 African Charter, Article 6 provides for the right to liberty and to security of person.

301The African Commission on Human and Peoples‟ Rights, „Resolution on Prisons in Africa, 1995‟,

<www.achr.up.ac.za/hr_docs/african/docs/achpr/achpr26.doc> accessed on Wednesday, 20^th January, 2016.

116 of a Special Rapporteur on Prisons and Conditions of Detention in Africa.³⁰² Based on the above recommendation, the Africa Commission on Human Rights in its 19^th Ordinary Session agreed to create the office of the Special Rapporteur on Prisons and Conditions of Detention in Africa. However, the said office was later created during the 20^th Ordinary Session of the Commission in Kampala, 1996.³⁰³

The mandate of Special Rapporteur on Prisons is to examine the situation of persons deprived of their liberty within the territories of states parties to the Africa Charter. The mandate extends to other detention centres such as reform centres and police cells. It covers detainees awaiting trial and convicts.³⁰⁴

The role of the Special Rapporteur on Prisons includes among others to inspect and report on prison conditions in order to protect the rights of those held therein. The Special Rapporteur on prisons researches on Prisons conditions, communicates with African governments regarding the state of their penal systems, entertains individual complaints about prison conditions, and reports to the Commission on a yearly basis.³⁰⁵ The Special Rapporteur on Prisons also proposes solutions to the challenges facing African prisons. The Special Rapporteur on Prisons also trains law enforcement personnel, police, prison guards and administrators, and lawyers on how to improve prison conditions in their respective domains. In addition, the Special Rapporteur on Prisons also examines prison facilities, analyses national and penal legislations to ensure their compliance with international and regional legal instruments.³⁰⁶

302Ibid.

303 MSK Kaggwa, „Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa‟, presented at the 52^nd Ordinary Session of the African Commission on Human and Peoples‟ Rights, held from 9^th to 22^nd October, 2012 at Yamoussoukro, Cote d ‟Ivoire, <www.achpr.org> accessed on Wednesday, 20^th January, 2016.

304MSK Kaggwa, „Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa‟, ibid.

305Ibid., p.6.

306Ibid.

117 The Special Rapporteur on Prisons carries out his work by visiting countries, inspecting their prisons, and reporting on conditions found therein. Sometimes, he also conducts follow-up visits. On this note, the Special Rapporteur on Prisons in Africa has visited the following African countries; Ethiopia, Benin, Zimbabwe, Mali, Mozambique, Madagascar, Gambia, Central African Republic, Malawi, Nigeria, Namibia, Uganda, Cameroon, South Africa, Democratic Republic of Congo, Botswana, Chad, Djibouti, Senegal, Sudan, Seychelles, Rwanda, Burundi, Tanzania, Ghana, Swaziland, Lesotho, Liberia, Tunisia, Mauritius, Burkina Faso, guinea Bissau, sierra Leone, among others.³⁰⁷ In each of the country visited, the Special Rapporteur on Prisons first meets with government authorities and holds a press conference prior to visiting various prisons, police holding cells, and reform schools. At each site, he meets with administrators, tours the grounds, and meets with inmates both in and beyond the presence of prison officials.³⁰⁸ Once the Special Rapporteur has concluded his visits, he again meets with government officials to make recommendations on pressing demands of their prisons. After his visit, the Special Rapporteur drafts a report to which the government may respond. A final draft of the report, accompanied with the government response is then prepared and made public.³⁰⁹

Even though reports of Special Rapporteur have varied from country to country, the Special Rapporteurs reports have overwhelmingly called for additional resources to be allocated to prisons in Africa. In addition, the Special Rapporteur has often called for improved training of prison officials in the area of human rights. Lastly, the Special Rapporteur on Prisons reports often highlight the need for improved intra-prisoner relations as a means of prisoners‟ rights protection.³¹⁰

307 Ibid.,p.7.

308 Ibid.

³⁰⁹ F Viljoen, „The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities‟, (2005) 27 HRQJ, p.125.

310 Ibid

118 According to MSK Kaggwa, in about twenty years of the creation of the office of the Special Rapporteur on Prisons in Africa, the Special Rapporteur on Prisons continues to receive disturbing revelations through investigations into prisons of some African countries.³¹¹ Investigation in some prisons in Africa countries revealed that some African countries are still confronted with criminal justice systems that are the legacy of the colonial era. This is coupled with retributive philosophy as the justification for imprisonment in some African countries. ³¹² The above aim is at variance with rights-based approaches emphasising rehabilitation and reform.³¹³

According to the Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa in 2012, despite the substantial increase in populations and crime rates in recent decades, the capacity of prison systems in Africa has barely changed.³¹⁴ The Report noted that whilst governments claim reform and rehabilitation as the aim of criminal justice, in practice, prison systems fail to deliver as expected and recent reports have shown that prison systems in most Africa countries are in crisis, burdened with overcrowding and inability to satisfy basic human rights standards.³¹⁵ Yet, some states in Africa have ratified some regional and international protocols and conventions on the protection of human rights.³¹⁶ This flows from the inability of some African countries to domesticate into their national legislations the provisions of the relevant regional and international legal instruments that they ratified.³¹⁷

Despite numerous efforts of the African Commission on Human and Peoples‟ Rights aimed at the protection and promotion of prisoners‟ rights in Africa, the Commission is faced

311MSK Kaggwa is a Commissioner with the African Commission on Human and Peoples‟ Rights. He is a Special Rapporteur on Prisons and Conditions of Detention in Africa.

312Ibid.

313 Ibid.

314 Ibid.

315 Ibid.

316 Ibid.

317 The Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that no treaty entered into by the government of Nigeria shall have the force of law until it is legislated upon by the National Assembly, Section 12(1).

119 with a lot of challenges. For instance, NJ Udombana stated that the African Commission on Human and Peoples‟ Rights is a toothless bulldog.³¹⁸ He argued that the Commission cannot award damages to the victim of human rights abuses, it cannot order for restitution or reparations. It cannot condemn an offending state. It can only perform postmortem examination by making recommendations.³¹⁹ To buttress his argument, Udombana cited two instances where the recommendations of the Commission were ignored by state parties to the African Charter:

(1) On 31^st October, 1995, Ken Saro-Wiwa, Nigerian environmental rights advocate and a leader of the Movement for the Survival of the Ogoni Peoples (MOSOP) and eight of his Kinsmen³²⁰ were sentenced to death by a Special Tribunal for Civil Disturbances.³²¹ The African Commission was immediately alerted by the Constitutional Rights Project (CRP), a Non-governmental Organisation in the field of human rights in Nigeria. The CRP later submitted an emergency supplement to its earlier complaint alleging that the Nigerian government had violated the African Charter specifically article 7 which guarantees the right to fair trial. The CRP then filed an application for a stay of execution before the Federal High Court sitting in Lagos.³²² In response, the Secretariat of the African Commission immediately faxed a note verbale to the Nigerian government and OAU (now AU) invoking emergency provisional measures and asked that the execution be delayed until the Commission had considered the pending case and discussed it with Nigerian authorities. Flagrantly disregarding the Commission‟s jurisdiction, Sani Abacha led government confirmed the

318 NJ Udombana, Human Rights and Contemporary Issues in African (Lagos: Malthouse Press Ltd, 2003) p.129.

319 Ibid.

320 MOSOP represents the rights of those who live in oil producing areas of Ogoni land. Saro-Wiwa‟s Kinsmen were Saturday Dobee, Felix Nuate, Nordu Eawo, Paul Levura, Daniel Gbokoo, Barinem Kiobel, John Kpunien and Baribor Bera.

321 Special Tribunal for Civil Disturbances established by virtue of Decree No 2 of 1987.

322 See Suit No: FHC/L/SC/1297 (Nig) (unreported) Federal High Court sitting in Lagos.

120 sentence on 7^th November, 1995 and the execution was carried as scheduled. What an unfortunate story?

(2) Another instance is the case of twenty-two persons charged and convicted for the alleged involvement in 1994 genocide in Rwanda. The Rwandese authorities had announced that the twenty-two persons charged and convicted for the act of genocide would be executed on 24^th April, 1998. The Amnesty International quickly informed the Commission of the planned execution by the Rwandese authorities. According to the Amnesty International complaint, the twenty-two persons so convicted were not given fair trial in line with international legal standard. Based on that, their execution would violate articles 4 and 7 of the African Charter, which guarantees the right to life and fair trial respectively. The Commission immediately sent a letter to the Rwandese authorities and reminded the Rwandese government of its undertaking under the African Charter and appealed to them to suspend the execution pending the Commission‟s consideration on the matter. The Rwandese government disregarded the Commission‟s appeal and went on to carry out the execution as scheduled.³²³ In order to cure the above defect, the African Union established the African Court on Human and Peoples‟ Rights in 2004.³²⁴ The aim of establishing the Court is to complement and reinforces the functions of the African Commission on Human and Peoples‟ Rights. On this note, the Court is empowered to take binding decisions. According to the article 5 and rule 33 of the Protocol to the African Charter, the Court may receive complaints and/or applications submitted to it by any of the following groups or individuals:

(i) African Commission on Human and Peoples‟ Rights; or (ii) State parties to the Protocol; or

(iii) African Inter-governmental Organisations; or

323 NJ Udombana, Human Rights and Contemporary Issues in African, op cit., p.131.

324 The Protocol to establish African Court was adopted in 1998 at Burkina Faso by the African Union and it came to force on 25^th January, 2004 <www.ihrda,org/.../african_court_on_human_rights> accessed on Thursday, 21^st January, 2016.

121 (iv) Non-governmental Organisations with observer status before the African Commission on Human and Peoples‟ Rights; or

(v) Individuals from states which have made a Declaration accepting the jurisdiction of the Court under article 34(6) of the Protocol.

Nigeria has not made a Declaration to accept the jurisdiction of the African Court on Human and Peoples‟ Rights as required by article 34(6) of the Protocol to the African Charter.³²⁵ The implication is that cases cannot be brought against Nigeria directly by individuals or NGOs. A case can only be brought against Nigeria in the African Court by other African states since Nigeria has ratified the Protocol to the African Charter. According to Justice Eric Ikhilae³²⁶, „right now, direct access to the court is only limited to the people bringing matter against states who have made the declaration‟.³²⁷ However, individuals are encouraged to sue at the ECOWAS Court since Nigeria has consented to the jurisdiction of ECOWAS Court.³²⁸

What emerges from the discussion on the above subheads is that there are a lot of international legal instruments asserting pressure in favour of the protection of prisoners‟

rights. These instruments cannot come to the aid of the Nigerian prisoners unless Nigeria reflects them in her national laws. As long as Nigeria remains adamant on the reflection of these international instruments in her national laws Nigerian prisons will remain centres for human rights abuse. The United Nations General Assembly President, Mogens Lykketoft

325„Falana Sues AU over Denial of Access to African Human Rights Court‟,

<www.saharareporters.com/.../falana-sues-au-over-denial-of-access-court,> accessed on Thursday, 21^st January, 2016.

326 Justice Eric Ikhilae was a Nigerian Judge to the African Court on Human and Peoples‟ Rights.

327 E IKhilae,‟ Why Nigerians Can‟t Access African Court‟ The Nation,

<www.thenationonlineng,net/why_nigerians_can‟t_access_african_court> accessed on Thursday, 21^st January, 2016.

328Sambo Dasuki v. The Federal Republic of Nigeria ECW/CCJ/APP/01/2016, „Sambo Dasuki drags Nigeria to ECOWAS Court for alleged unlawful detention, the Punch‟< www.punchng.com/weve-jurisdiction-to-hear-dasukisuit> accessed on Monday, 12^th April, 2016.

122 argued that, „no one truly knows a nation until one has been inside jail‟³²⁹ and „a nation should not be judged by how it treats its highest citizens but its lowest citizens‟.³³⁰ This is a message to Nigeria. Nigeria needs to act now before it will be blacklisted as one of the nations that have no regard for prisoners‟ rights.