“We must change our lawless habits, our attitude to public office and public trust. We must change our unruly behaviour in schools, hospitals, marketplaces, motor parks, on the roads, in homes and offices. To bring about change, we must change ourselves by being law-abiding citizens” – President Muhammadu Buhari
It is not something at the top of the agenda of most politicians and governments and you rarely hear it on the campaign trail but Africa needs criminal justice reform. Most of the continent is still using laws that date back to the colonial era that criminalises things (like loitering, hawking and begging) that are targeted at the poor, too many people being held in jail are there awaiting trial and because they are poor they cannot afford bail. Most law enforcement across the continent is selective, and disproportionately targeted at the poor while those with money go free. This has made the police and the law an enemy of the people, rather than serve society the law is seen as a tool, a tool of repression and extortion and it is time for that to end. There have been any number of police reform efforts across the continent looking to deal with police corruption and ineffectiveness, and several governments have sought to increase police numbers to increase law enforcement coverage. However, very few have thought to look at the laws which the police and the courts are supposed to be enforcing, that if we had laws that actually sought to go after the crimes that affect people’s lives then law enforcement might work, that by making punishment and bail proportionate to crime, jails and courts could be decongested, that modern law enforcement must have modern, not colonial laws.
Colonial laws, colonial police
Governments across the continent have reformed land laws, education laws, health laws, marriage laws and many have written whole new constitutions, it is surprising that very few have thought that a modern criminal justice system, with modern laws, is necessary for development. A good example of this is Nigeria, Nigeria has 5 major criminal justice laws 4 of them (the Penal Code, the Criminal Code, the Criminal Procedure Act and the Evidence Act) all date back to the colonial era, and the Police Act dates back to pre-independence 1943[1]. As you can see from figure 1, criminal laws in much of former British colonial Africa descend from 19th-century British law.
Figure 1 Development of criminal codes in Africa during British colonialism Source: South African Litigation Centre[2]
Colonial justice was prejudiced against poor black Africans, and even though the explicitly racist provisions of the laws may be gone, their intent and the effect of policing, suppressing and intimidating poor black Africans are still there. Colonial police forces were not created to ‘protect and serve’, their primary mission was to protect the state which meant suppressing resistance, fighting crime and protecting society was a secondary mission. The symbol of this is VIP protection, is it any surprise that state officials and politicians across the continent have (often excessive) police protection while police are spread thin in the places where they are needed most.
The second key issue is the focus of colonial criminal laws, prisons, and the colonial system for used imprisonment as the primary form of punishment and as a result, Africa’s prisons are desperately overcrowded (figure 2)
Figure 2 Top 10 African jail Occupancy level (based on official capacity) – source world prisons brief
And far too many of these people are people on remand or pre-trial detention (figure 3), which means they have not been convicted of a crime yet but are waiting to face trial and are too poor to afford the bail terms.
Figure 3 Top 10 African Pre-trial detainees/remand prisoners – source world prisons brief
In short, we have old laws focusing the justice system not on the protection of its citizens but on protecting the state and in the process allowing criminals to flourish. The court system based on these old laws jails anyone for anything (such as vagrancy which makes it a crime to be poor and present) and as a result, our prisons are overcrowded, mainly with poor people.
Reform law to enforce it.
Criminal justice reform must start with the laws that underpin it. Africa must reform its criminal justice laws, so long as the heavy hand of the law falls on the poorest and most vulnerable the rule of law will remain elusive. If we want true police reform, to end the culture of impunity that enables corruption and crime then people must have trust in the laws that underpin justice. And while we are at it we might just end up decongesting our jails and giving millions a chance to resume lives put on hold.
Ideally, the debate would start with a clean slate, asking two key questions what is the purpose of these laws and do they contribute to the safety and security of the public. Reform of criminal laws would allow us to look at what should be a criminal offence, decriminalising things like loitering, begging, and hawking will stop criminalising people for simply being poor. Then we can have a discussion about decriminalising social problems such as prostitution or marijuana/khat/miraa possession, it may be controversial, but the debate should be had. How can and should we punish serious offences and misdemeanours, jail is not the only solution, particularly for petty crimes and especially for people with addiction problems or mental health problems who need help, not punishment.
If we are to change our lawless habits as President Buhari suggests then Africans must have fair laws. We must have laws that target crime and insecurity that acknowledge that poverty is not a crime, and police services that protect people, rather than colonial forces in all but name that protect the state. Development requires justice, it requires safe and secure communities, it requires the rule of law that applies to all without fear or favour. It’s time criminal justice reform was moved to the top of the agenda of African governments policy agenda.
[1] https://guardian.ng/features/youthspeak/time-to-mend-nigerias-broken-criminal-justice-system-1/
[2] https://southernafricalitigationcentre.org/wp-content/uploads/2017/08/05_SALC-NoJustice-Report_The-Persistence-of-Colonial-Vagrancy-Laws-in-Southern-Africa.pdf