By: BANKOLE CLIFFORD EKUNDAYO MORGAN,
LL.M in International Maritime Law
Master in Governance and Leadership
Human Rights Advocate
UNDUE PRETRAIL DETENTION
Undue pre-trial detention of accused persons by state actors is an act of human rights violation. Globally, such violation by state actors, affects thousands, if not millions of accused persons and their families monthly. This form of human rights violation inflicted by state actors, undoubtedly can widen poverty, restricting economic development and undermining the rule of law. It is evident that accused persons under undue pre-trial detention may lose their jobs, homes, contract entered into and sometimes been asked to pay bribes in order to secure their release or better conditions of detention. Accused persons under undue pre-trial detention, alongside their family members do suffer physical and psychological damage. Fundamentally, the impact of such physical and psychological damage linger even after the detention of the accused persons.
THE DECISION TO DETAIN ACCUSED PERSONS BEFORE CONVICTION
The decision of state actors to deliberately deny accused persons bail before conviction or not been given the possibility to apply for bail before trial is a form of human right violation. It is important to state that whether or not the arrest is justified and whether due process is followed, the arrest is likely to have a traumatic effect on the detainee and those who love and depend on the accused. According to the United Nations Human Rights Committee, detention before trial should be used only where it is lawful, reasonable, and necessary. Essentially, the decision of state actors to unnecessarily detain accused persons before they are found guilty is another form of inflicting torture, inhuman and degrading treatment against accused persons.
UNDUE PRE-TRIAL DETENTION IS A VIOLATION OF HUMAN RIGHTS
Human Rights may be defined as fundamental rights of an individual protected by law and guaranteed by the state. It is important to impress on the minds of state actors that undue pre-trial detention is a violation of an accused person’s Civil and Political Rights, as well as Economic, Social and Cultural Rights. In essence, when an accused person is under undue pre-trial detention, both their Civil and Political Rights, and Economic, Social and Cultural Rights are punctuated by state actors. The International Covenant on Civil and Political Rights (ICCPR), is a treaty that requires member states to respect the civil and political rights of individuals, while the International Covenant on Economic, Social and Cultural Rights urge State parties to undertake to ensure the equal rights of men, women to the enjoyment of all economic, social and cultural rights.
UNDUE PRE-TRIAL DETENTION DOES NOT IN ANY WAY REDUCE CRIME
Profoundly, undue pre-trial detention has huge impact on an accused persons and their families. In such circumstance, the accused person immediately loses his freedom, including any contract entered into, his family, health, home, job and community ties. It is important to note that undue pre-trial detention does not in any way reduce crime or improve public security. In fact, prolonged pre-trial detention is more likely to increase criminality than to deter it.
LOCKING UP PRESUMED INNOCENT ACCUSED PERSON IS A HUMAN RIGHT VIOLATION
Fundamentally, the effect of undue pre-trial detention is very huge on accused persons. For instance, state actors, locking up thousands or millions of accused persons globally for weeks, months or year, whom by law are presumed innocent is a violation of international human rights laws and norms. Most pre-trial detainees pose no threat to society and should not be in detention for a prolonged period of time awaiting trial where bail can be granted. In some cases, many of those held in undue pre-trial detention will have their charges with drawn due to lack of evidence, while others will be acquitted at trial. Yet, others will be found guilty of minor offences or non-violent offences for which jail time is inappropriate or for which the maximum sentence is less than the time spent awaiting trial.
STATE ACTORS MUST HAVE A PARADIGM SHIFT
The thrust of this article is to firstly, educate the public on the effect of undue pre-trial detention on poor accused persons and their families. Second, is to engage state actors constructively in order for them to have a paradigm shift that is from the common practice of undue pre-trial detention as a form of human rights violation, to human rights based approach in line with international best practice. As human rights advocates, we have the primary responsibility to raise awareness on the effect of undue pre-trial detention on accused persons, their families and how such act can undermine socio-economic development in society.
A CLARION CALL TO ALL HUMAN RIGHTS ADVOCATES
Predominantly, undue pre-trial detention of accused persons has a huge socioeconomic impact. It is evident in both part one (1) and part two (2) of my articles, that undue pre-trial detention critically undermines socio-economic development in society. I am therefore making a clarion call to all human rights advocates to intensify advocacy on undue pre-trial detention and the effect on accused persons and their families. As human rights advocates, we must deliberately impress on the minds of state actors the socio-economic effect of undue pre-trial detention on accused persons and their families. The essence of the advocacy campaign is for state actors to STOP the use of undue pre-trial detention in violating the rights of poor accused persons. Profoundly, undue pre-trial detention disproportionately affects individuals and families living in poverty, than influential or high-income earners.
CONCLUSION
It is evident from the write-up that undue pre-trial detention critically undermines socio-economic development in society. State actors should stop the draconian use of undue pre-trial detention which is a mode of violating the rights of poor accused persons. Undue pre-trial detention affects accused persons and their families living in poverty. Due to the fact that accused persons and their families are living in poverty, that is the more reason why they are likely to come into conflict with the criminal justice system, and more likely to be detained awaiting trial, and less able to make bail or pay bribes for their release. It is important to note that excessive use of pre-trial detention means lost income and reduced employment opportunities for accused persons. For the families of the accused, it means economic hardship and reduced educational outcomes. When an income earner is detained, it is obvious that the entire family will starve. Regarding the state, it means increased costs, reduced revenue, and fewer resources for social service programmes.
