Contributing to consolidation of the rule of law in the DRC by combating mass illegal pre-trial detentions

A punitive measure permitted by legislation throughout the world, recourse to pre-trial detention (PD) within the framework of a criminal investigation is not in itself a questionable practice, provided that PD remains a judicial course of action which is used exceptionally and with respect for the conditions imposed by the law, as required in a state governed by the rule of law. However in the DRC, the vast majority of those accused are placed in pre-trial detention, they do not regularly appear before a judge, and they do not have access to a lawyer. Moreover, their humanitarian situation while in prison is appalling, principally as a result of extreme prison overcrowding and the almost total absence of any commitment on the part of the Congolese government to providing basic services (food and sanitation). Very often, prison conditions constitute “inhumane and degrading treatment”. The overcrowding in Congolese prisons is, in large part, due to the high number of illegal pre-trial detentions. ASF’s experience of the Congolese justice system over more than 10 years confirms that there is a correlation between the massive scale of illegal pre-trial detentions and the absence of systematic, quality legal aid. The issue, therefore, is to offer a lasting, structural response to the issue of mass illegal pretrial detentions, which is symbolic of all the problems of the Congolese justice system. This response would be introduced alongside existing programmes supporting justice reform in the DRC. ASF’s intervention strategy involves firstly implementing a human rights approach based on the principle of the interdependence of human rights as a precondition of their effectiveness. To reinforce the classic approach of arranging quality legal aid for the highest number of pretrial detainees (right to a fair trial, access to a judge), this pilot project, for the first time in the DRC, allows the principle of the interdependence of human rights to be put into action by incorporating violations of detainees’ economic and social rights and a new aspect – access to justice as a factor in reducing poverty – to be promoted. In fact, the social and economic impact of depriving individuals of their liberty is often underestimated. The detainees and their families often live in extreme poverty and thus for them, access to a quality justice system is not a priority. This is a vicious circle, reinforcing the dynamics of impoverishment. Access to justice therefore becomes even more difficult. And the situation is clearly even worse in cases where the detention is illegal. Therefore, it is imperative that the individual and also the collective consequences of PD are taken into account, not only by political decision makers, but also by all of those responsible for individual legal proceedings (lawyers and magistrates). ASF’s project aims to raise awareness, provide information and take action alongside numerous local, national and international players from the legal and university sectors, as well as the anti-poverty sector, to highlight the consequences, both individual and collective, of pre-trial detention and to develop effective long- and short-term strategies to reduce its most harmful effects. In order to make a contribution to strengthening the rule of law in the DRC through combating mass illegal pre-trial detentions, ASF’s intervention strategy involves guaranteeing access to systematic and quality justice for vulnerable individuals held in pre-trial detention in the three provinces covered by the project (Kinshasa, Equateur and Bas Congo), as well as developing a national strategy coordinated by the National Order of Lawyers of the DRC (ONARDC). The aim is to achieve the following results: - Result 1: Pre-trial detainees are made aware and informed of their right to a fair trial and their right to food, and of the mechanisms of recourse available to obtain them. - Result 2: Pre-trial detainees benefit in the long term from quality, systematic and ongoing legal aid. - Result 3: Those involved in providing access to justice are aware of detainees’ right to food and the corollary between A2J and poverty reduction In order to achieve these results, a series of initiatives will be implemented: - awareness raising and information for detainees, an essential step in the change process so that detainees can decide to take legal action to contest the legality of their situation - awareness raising and information for those working in the justice sector (magistrates, lawyers, civil society, the Ministry), the university sector and the development sector on the individual and collective consequences of PD and on the ‘legal’ actions which can be taken to reduce the most harmful effects - providing quality legal assistance to hundreds of pre-trial detainees, with priority given to women and minors - building the internal capacity of the ONARDC and the four relevant bar associations (Kinshasa Gombe; Kinshasa Matete; Matadi; Mbandaka) to put in place and manage a systematic and quality legal aid service for pre-trial detainees, notably through the establishment of a Pre-Trial Detention National Commission for Legal Assistance - improving the technical skills of lawyers to take responsibility for this legal aid, through training, coaching sessions and the publication of teaching materials - strategic litigation to support ‘high value added’ judicial proceedings, establishing through the legal process the responsibility of the Congolese state with respect to international law on human rights and the rights of detainees. Expected Impact This two-year project paves the way for a multi-year strategy aimed at gradual disengagement from the provision of direct services in favour of the local bar associations, acting under the aegis of the National Order of Lawyers of DRC (ONARDC) and recognition of this organisation, at a national level, as the primary interlocutor with the state in the legal aid sector benefitting, firstly, those who have been deprived of their liberty. At a local level, the project will help lawyers to specialise and give responsibility to the authorities of each bar association for putting in place lasting local mechanisms for providing legal aid to detainees. In addition, the project will mobilise new players – the University of Kinshasa and some of its law students – to set up a legal clinic in the capital’s prison. This work has a long-term aspect to the extent that these students are aspiring to commence their professional lives in the ‘legal services market’ and, in the near future, to get involved in developing national policies, in other words in the administration of justice within their country. Thus, they will receive training on the issue of access to justice for the most vulnerable and on the tools which can be used to protect the rights of individuals, which they will then be able to continue to promote and implement.;