By: BANKOLE CLIFFORD EKUNDAYO MORGAN,
LL.M in International Maritime Law
Master in Governance and Leadership
Human Rights Advocate
UNDUE PRE-TRIAL DETENTION VIOLATE ARTICLES 9(3) AND 14(3)(C) OF THE ICCPR
Essentially, the purpose of this write up is to impress on the minds of state actors that undue pre-trial detention undermines socio-economic development. Procedurally, pre-trial detention may be ordered only if there are reasonable grounds to believe that the accused is a flight risk or to protect the community or to prevent the accused from further criminal activity or to prevent the accused from interfering with the prosecution’s witnesses. Fundamentally, any pre-trial detention that is motivated by an “Order from above” or where there are no reasonable grounds to detain the accused, same can be an undue pre-trail detention. It is also important to remind state actors that undue pre-trial detention violate Articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights (ICCPR).
PRE-TRIAL DETENTION
Pre-trial detention may be defined as the practice of state actors holding under custody accused persons while they await their trial, usually during pre-trial investigations. In essence, it is a practice by which accused persons are kept under custody in correctional center or in a detention facility before their trial takes place in court. In most instances, accused persons are not put on bail, or released on bail at their own recognizance or at the recognizance of credible sureties, while the pre-trial matter is pending. In most cases pre-trial detention is employed by state actors against accused persons as a mode of persecution, rather than prosecution. It is however, important to note that pre-trial detention is procedural and should only be used in circumstances where the accused person is a flight risk.
THE USE OF PRE-TRIAL DETENTION AGAINST ACCUSED PERSONS
Principally, the main purpose of the use of pre-trial detention against accused persons is to secure appearance of the accused persons at trial, especially so if the said accused person is a flight risk, meaning there is a likelihood of them fleeing the jurisdiction as a way of perverting justice. Another reason of the use of pre-trial could be to protect the community and to prevent the accused person from further criminal activity or to prevent him from interfering with the prosecution’s witnesses. Pre-trial should be seen as a preventive or provisional measure while an accused is temporarily detained awaiting trial. In some cases the length of time that some accused persons spent under pre-trial detention is unimaginable. Primarily, undue pre-trial detention by state actors, go contrary to the right of accused person’s presumption of innocence and this is one of the fundamental guarantees in criminal proceedings.
PRE-TRIAL DETAINEES
Pre-trial detainees are otherwise known as accused persons arrested and detained under custody at the correctional center/detention facilities for allegedly committing a criminal offence, for which they awaits trial. In most cases, accused persons are held under pretrial detention awaiting trial or the finalization of their trial as they are yet to be convicted of the charges levied against them. In law and practice, accused persons held under pre-trial detention are legally presumed innocent.
WILLIAM BLACKSTONE’S CONTRIBUTION ON PROLONGED DETENTION
This article will go without a ceiling if I failed to mention briefly the important contribution by William Blackstone, a prolific legal and academic. He made a significant contribution regarding the prohibition of prolonged detention of accused persons without charge. In his contribution, he introduced the legal concept otherwise known as “habeas corpus” which was first introduced in England about a century after the 1215 Magna Carta, when he cited the use of habeas corpus ad subjiciendum in 1305.
THE RIGHT TO THE PRESUMPTION OF INNOCENCE
The right of an accused to the presumption of innocence is one of the guarantees in criminal proceedings contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR). Presumption of innocence generally, is a fundamental principle of any criminal justice system based on the rule of law and individual liberties. Essentially, pretrial is permissible, yet there are International standards and or requirement to be fulfilled by state actors. In essence, pre-trial detention can be used only if there are reasonable grounds to believe that the accused person concerned has been involved in the commission of the alleged offence, and that it is evident by the conduct of the said accused person that he will abscond or interfere with the prosecution’s witnesses or course of justice or will further commit a serious offence. Conversely, International standards also mandate the widest possible use of alternatives in order to avoid pretrial detention.
A GOOD NUMBER OF ACCUSED PERSONS GO THROUGH UNDUE PRE-TRIAL DETENTION
As human rights advocate, I have observed through reports and monitoring that globally, a good number of accused persons go through undue pre-trial detention every year. Many of them spend days, or weeks, or even months in detention without being tried or convicted or acquitted. It is important to note that there are huge socioeconomic impact of undue pre-trial detention. Fundamentally, locking away accused persons who are presumed to be innocent under detention awaiting trial is a violation of international norms and deprivation of time of accused persons who would have contributed constructively towards nation building. Undue pre-trial detentions destroyed accused person’s potentials, thereby undermining development. It is equally important to note that government signing human rights treaty/treaties has the primary obligation to protect, promote and fulfil human rights.
UNDUE PRE-TRIAL DETENTION UNDERMINES SOCIO-ECONOMOIC DEVELOPMENT
Generally, undue pre-trial detention undermines socio-economic development in society. Notably, the costs of such undue pre-trial detention are usually paid not only by the accused persons, but also their families, communities and the state. Essentially, based on the fact that accused persons are under detention awaiting trial, they stand a chance of losing their jobs. In some other instance losing their properties, as they may be forced to sell their family properties. While in another instance they may be evicted from their rented homes, as their families may be constrained financially to foot the bills for the rent if an accused person was the breadwinner. In most cases their families suffer from lost income and forfeited opportunities. These opportunities in actual fact will affect accused persons, their children, wives, and they stand a chance of suffering a long lower lifetime income. In essence, the ripple effect of pre-trial does not only stop there, but the overuse of undue pre-trial detention by state actors, evidently affect economic development. It is also a waste of state resources and hinder the aspirations of accused persons and their families to contribute constructively towards nation building.
Please watch out for part : 2
In Part: 2 the topic “UNDUE PRE-TRIAL DETENTION UNDERMINES SOCIO-ECONOMOIC DEVELOPMENT “ will be explained under the following headings:
- State actors must have a paradigm shift
- A clarion call to all Human Rights advocates
- Undue pre-trial detention
- The decision to detain accused persons before conviction
- Undue pre-trial detention is a violation of human rights
- Undue pre-trial detention does not in any way reduce crime
- Locking up presumed innocent accused persons is a human right violation, and
- Conclusion.
Please watch out for part : 2.
