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The Challenges of Harmonising Criminal Justice Systems in Africa

Dr David ZounmenouCrime and Criminal Justice Systems in Africa

Pretoria, Court Classique Suite Hotel22 October 2009

The Challenges of Harmonising Criminal Justice Systems in Africa

Dr David ZounmenouCrime and Criminal Justice Systems in Africa

Pretoria, Court Classique Suite Hotel22 October 2009

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Introduction

• Criminal justice is at the heart of the development and democratisation processes.

• Recent surveys conducted by AHSI and its partners show disparities in various systems

• Necessity to think about approach to amend and bring justice to the people as part of human security imperative

• While this is a noble objective, we should not loose sight of the many challenges.

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Objective

• Explore avenues to transform criminal justice systems in Africa through the process of harmonising existing instruments, institutions and practices across the continent

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Criminal Justice in Africa: Divergences and complementarities

There are major variations in criminal justice systems across the African continent.

Though national systems have undergone important transformations since the independence times, important differences continue to characterize them not only along Francophone, Lusophone and Anglophone traditions but also regarding the conception and goals of criminal justice systems: Punitive vs Corrective Justice.

Africa criminal justice system as a whole is facing special circumstances because of the dual heritage of colonialism and traditionalism. This indicates that it is crucial to look at national criminal justice system not only in terms of broad comparison across the region but also in historical terms as being subject to transformation over time.

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Divergences and complementarities

In recent decades, research on criminal justice system has focused on patterns of change, increasing interdependency between national/regional systems and lasting problems of multiple traditions.

When one looks at the CJS, whether Anglophone, Lusophone or Francophone, one cannot help but realize that both can learn from each other in areas that include a more careful selection of:

Police force or law enforcement agencies Prosecutors, courts and Judges Effective regulations of prosecutorial charging discretion.

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Common Problems to all CJS

In addition, though both systems might have their own structural specificities, as discussed here and through the ISS research project, some problems remain too common to both regimes. Findings reveal that different countries are at different stages in the democratization process with varying institutional and policy frameworks in their criminal justice systems.

State of prisons and treatment of inmates Access to justice Law enforcement agencies Independence of the criminal justice system Common nature of crimes committed Transnational organised criminal networks

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Harmonisation: What does it entail?

The process of reforming the criminal justice systems has been going on in earnest for over a decade al be it, at a snail’s pace with mixed results.

The primary emphasis should therefore, be placed on the structural issues and processes that enhance both transparency and accountability, as well as participatory, information-oriented, mutually-supportive programs and strategies designed to promote public trust in the judiciary.

Continental framework made a number of initiatives taken by continental bodies to address criminal justice system in Africa.

1981 Africa is African Charter on Human and People’s Rights: Amongst other things, the Charter recognizes economic, civil and political rights. The supervisory mechanism created by the Charter is the African Commission on Human and People’s Rights. The Commission is currently being supplemented with an African Human Rights Court.

Some analysts have hailed the African Charter as a progressive and innovative document that, among other things, recognizes the indivisibility of civil, political, economic, social and cultural rights. Others have criticized the African Charter for its many shortcomings, in particular its ‘claw-back’ clauses, which make certain rights subject to domestic law.

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Harmonisation: What does it entail?

• A further significant step in addressing CJS is the Forum on Security, Stability, Development and Co-operation in Africa (CSSDCA), convened in May 1991 in Kampala, Uganda. A major objective of the conference was the creation of Pan African Parliament (PAP). CSSDCA provided the first major positive shift in the way stakeholders at the continental level began to explore a paradigm in confronting human rights abuses, democracy, good governance, transparency, accountability; and, promoting peace and security and stability on the continent.

• The CSSDCA conference was held a time when strategic alliances in the world were undergoing rapid changes as a result of the end of the Cold war. These changes ushered in a new paradigm in security matters popularizing the idea of human security; which is a move away from the state-centered paradigm of security.

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Harmonisation cont..

Harmonisation in the African context is far from being easy and different approaches are possible. Here, it is possible to identify two kind of harmonization processes.

Internal harmonization process: Customary laws and formal justice systems.

External harmonization process: Formal justice systems and the international legal standards.

Aim is to build a Continental Justice System that is capable of tackling common challenges associated with criminal justice system in Africa.

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Harmonisation cont…

• Therefore, harmonisation is bringing legal provisions in compliance with the provisions of the international human right instruments ratified by the AU member states.

• It is a complex exercise that requires the involvement of various actors and stakeholders including states, civil society, research institutions, experts and MPs.

• The harmonization process is likely to raise two fundamental issues: How and What to harmonise

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How and What to Harmonise?

How to harmonise? Involves:

• Review and analysis of national systems is relevant. ISS/AHSI Projects. This has helped to identify the inconsistencies.

• Specific attention to the possibilities/obstacles for the implementation of the process (gradualism could be suggested)

What to harmonise? Involves:

• Access to justice

• Prisons and conditions of detention

• Law enforcement strategies and agencies

• Prosecutorial approaches

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Some difficulties ahead

Some troubles we have to keep in mind

• Uneven degree of democratization

• Political will of leaders

• Unavailability of resources

• High level of corruption in the judiciary.

• National/Sovereign Pride

• Neocolonial influence

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Conclusions

 • Harmonisation is much more than imposition of one model on all

countries. It requires careful elaboration and needs to take into consideration some country specifics challenges.

• To be successful and useful, the process needs to be all encompassing work and comprehensive.

• Step-by-step approach can, if well prepared and well planned, be an effective method. But whatever approach is privileged should be open and largely participatory. 

• Lessons from OHADA and Community Court are useful

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Today human rights abuses are tomorrow’s causes of conflicts

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