Guinea: child victims of “punitive justice”

Nordine Drici. Legally, standards for detention do exist in Guinea. The Criminal Code, like the Code of Criminal Procedure, was revised in 2016. It includes international crimes (such as war crimes, genocide, and crimes against humanity) and has raised the threshold of criminal liability for children from 10 to 13 years old. The Code on the Rights of the Child, which the country adopted in 2019, is considered one of the best in West Africa.

Guinea has ratified some international and regional treaties for the promotion and protection of human rights, including the United Nations Convention on the Rights of the Child, as well as the Convention against Torture. However, it has not ratified the Optional Protocol to the Convention against Torture (which provides for the creation of a national prevention mechanism), nor the International Convention for the Protection of All Persons from Enforced Disappearances.

In practice, there are many obstacles. First, the lack of facilities: there are too few courts, prisons, human resources, and allocated resources.

There are 36 courts in the four regions of Guinea: 18 courts of first instance and 18 houses of justice, which serve as mediation courts and only handle misdemeanour cases. For serious crimes, you must go to a court of first instance. But there are not enough of those, which severely limits one’s access to justice.

The country’s 34 prisons date back to the colonial period. Prison overcrowding is very common. There are eight high-security prisons, the rest are short-stay prisons. The classification of prisoners does not meet the standards: some are held in short-stay prisons while serving long sentences.

The high-security prison in Conakry, for example, is designed to accommodate between 300 and 400 prisoners. It now houses 1,600 prisoners, which is four to five times more than its capacity. Access to care, medical treatment and food does not meet the minimum requirements. Several national and international organisations have had to develop food programmes for prisoners because daily rations are too meagre. This often leads to deaths due to undernourishment and malnutrition.

The lack of trained professionals to act as judges is also a concern. In 2021, the country only had 350 judges. Training the next generation of judges is crucial as the law evolves. Most of them belong to the old school. They do not consult international law. There is also the fundamental issue of bringing more female judges into the judiciary, which seems to be underway, but there remains work to be done.

The law permits magistrates to visit and inspect prisons. The Code on the Rights of the Child also affords politicians the right to visit places where minors are detained. However, neither magistrates nor politicians exercise this right. This missed opportunity to inspect places of detention is all the more regrettable because organisations defending fundamental rights have great difficulty entering the high-security prison of Conakry.

Overall, there are many discrepancies between the standards and what is practised. Standards do exist, despite shortcomings. But even magistrates do not inspect the premises as they should.

There is a real problem in Guinea when it comes to monitoring and evaluating detention conditions and the treatment of persons deprived of liberty.

ND. Access to justice is difficult for minors. The Code on the Rights of the Child was created in 2019 by Guinean experts and UNICEF to protect children’s rights. It has four core principles. The first principle is that the best interests of the child must take precedence over judicial decisions concerning a minor. The second is the right to life, survival, and development. The third is non-discrimination of the child. The fourth is the right to be heard. These principles, which are based on the International Convention on the Rights of the Child, are scarcely applied, however.

In Guinea, putting a child under the age of 13 in prison is prohibited by law. In reality, there are 12-year-olds, sometimes as young as 10-year-olds, in detention. They are imprisoned with adults, either in custody or in prisons. These minors should be released immediately.

Today, the mediator appointed by the Code of the Rights of the Child has still not been named. This independent mechanism, complementary to the Independent National Human Rights Institution (Institution Nationale Indépendante des Droits de l’Homme, INIDH), which was dissolved following the coup d’état on 5 September 2021, would ensure that children’s rights are respected in prison and in general. Few magistrates (five at this point in Conakry) are experts on the issue of minors in conflict with the law. In Conakry, there is not even a court designated for children. During the Covid-19 pandemic, hearings made up of five, masked people were held in the President’s 15m2 office.

The lack of resources and staff, as well as a lack of action from the authorities, makes it difficult to implement the law. A free consultation office is run by UNICEF, but no one is aware it exists. Minors remain in prison because they do not know their rights.

The Penal Code and the Code on the Rights of Child offer the possibility of alternative measures, such as community service (travail d’intérêt général, TIG), in accordance with the law. But to truly implement these measures, we need to reach out to public institutions, non-profit organisations, and private companies. How do we ensure that children do not spend months or years locked up idle? In prison, their education is in no way guaranteed. The issue of alternative measures truly underlines research and work that need to be carried out.

ND. This does not only concern Guinea, we need to develop a penal philosophy worthy of its name. We must ask: “Why is there a need to lock people up?”

This is an important issue, especially since the Guinean population is very young. Guinea’s future is at stake. There would be very few children in prison if alternative sentences were put in place. Prison must serve as a place for reform and rehabilitation. The retributivist view of punishment should not take precedence over reintegration and rehabilitation. For example, detention measures must be an opportunity to educate and train these young people for employment. We must take these measures seriously into consideration and invest in them.

For me, a philosophy of punishment also includes taking into account specific populations with vulnerabilities in detention: women, women with young children, people with disabilities, LGBTQIA+ people.

Penitentiaries must respect the dignity of prisoners. We do not mean that incarcerated individuals should have a higher standard of living in prison than they would have outside it, they must simply be treated with dignity.

The Guinean people have a role to play as well. The truth is that the deplorable state of prisons in Guinea doesn’t bother many people. The collective imagination wants prisoners to be punished for violating the law. Until Guinean public opinion changes, the authorities will continue to do nothing. Non-profit organisations must also be able to play their role fully. We need to have as much consensus as possible, and respecting children’s rights is a point people can agree on. Children must be treated properly. Ensuring child protection can make it possible to act on the wider issue of prison.

We need a strategy fuelled by a vision of what constitutes justice and the prison administration’s mission to avoid having more Guinean youth in prison than outside it. Young people are idle. They are poor. They thirst for justice. We must educate them.