The uses of pre-trial detention A case study at the Maison Centrale in Conakry
Translated and edited by Cadenza Academic Translations
Located opposite the old railway yards in the district of Kaloum, the Maison Centrale prison in Conakry takes in prisoners under the jurisdiction of the three courts in the city: Kaloum, Dixinn, and Mafanco. The entrance to the prison is set back from the street, next to the gendarmerie post. In fact, one might not know it was a prison, except for the military posts at each corner of the building and the presence of prison service vehicles bearing the insignia of the justice reform programme funded by the European Union (PARJU).
After clearing a series of checkpoints, visitors enter a small room with a single window looking onto the main courtyard. Depending on the day, a few visitors might be waiting on the benches or talking to a prisoner through the window. The prison was built by the French colonial authorities at the start of the 20th century and was initially meant to hold 300 inmates. It now holds 1,506 prisoners, most of them in the original buildings, which the inmates and guards call ‘en has' (down below).
While imprisonment did exist in pre-colonial societies, it was a marginal form of punishment and was generally imposed separately from the main sentence (Bernault 2007). Colonialism introduced confinement as a form of criminal punishment used to control populations and exploit their workforce. The French built a number of institutions, including the Maison Centrale in Conakry, which was constructed in 1903 for common-law prisoners, and the penitentiary in Fotoba, which was built in 1905 for those serving longer sentences and for political prisoners (Goerg 1999).
Post-colonial societies have maintained, and appropriated, the practice of confinement as a means of punishment (Bernault 2007), but incarceration rates in Africa are still lower overall than in Europe and the Americas. With 28 prisoners per 100,000 inhabitants,1 Guinea has a low incarceration rate for the region; Cote d’Ivoire, for example, jails 82 per 100,000 inhabitants,  and Burkino Faso
39 per 100,000 inhabitants. However, the proportion of people in pre-trial detention in Guinea is one of the highest in both the region and the continent. At the Maison Centrale in Conakry, 63% of inmates are awaiting trial. Among them, 16% have been waiting for more than five years.
In pre-trial or provisional detention, a judge orders an individual to be detained before a final judgment has been made on their guilt and their sentence issued. In Western philosophies of punishment, pre-trial detention is traditionally seen as a ‘necessary evil’ (Robert 1986), and the duration of detention is strictly limited by law in order to counterbalance any damage to individual freedoms. Lengthy pre-trial detention is seen as a symptom of a dysfunctional justice system that has little respect for human rights. Efforts to reduce lengthy pre-trial detention thus form a central part of the justice reform programmes conducted under the influence of international actors (United Nations agencies, the European Union, and international nongovernmental organisations [NGOs]), which see regulating pre-trial detention as a crucial issue if human rights are to be respected and if the justice system is to function effectively. Following this pressure, a reform of the justice sector began in 2011, and commissions were established to revise the penal code and the criminal procedure code, made up of magistrates, lawyers, members of local associations, and international experts. These efforts were funded by the technical and financial partners of the Ministry of Justice, the European Union, the United Nations Development Programme (UNDP), the International Committee of the Red Cross, and the French embassy. At the beginning of July 2016, the Guinean parliament adopted a draft code of criminal procedure, whose stated objectives were to speed up criminal trials and to improve respect for the rights of the accused.
Prison is often described as a separate institution (Bernault 1999), disconnected from the judicial system. Here, I approach it instead by looking at the practices of the penal system actors (police officers, judges, prosecutors, lawyers, and prison officers), from placement in detention to sentencing. These practices, I argue, are shaped by the confrontation of interests and by the organisation of spaces of negotiation. To do so, I reflect on the situations of the pre-trial detainees I met in the Maison Centrale to examine how actors in the Guinean penal system use pre-trial detention within a context of reform.
Between January and June 2018,1 made multiple visits to Conakry’s “Maison Centrale” under the auspices of the Guinean association Les memes droits pour tous (MDT; The Same Rights for All), which provides assistance to poor prisoners in the Maison Centrale. I assisted just over 20 inmates during the pre-litigation phase and, as a lawyer, I represented 13 inmates before the penal courts (nine defendants before the criminal courts and four pre-trial detainees before the correctional courts), as well as three civil parties. This chapter is based on my observations during the procedures I participated in or witnessed; informal exchanges with prisoners, lawyers, magistrates, members of NGOs, and prison guards; and data from the records office of the Maison Centrale.
In the first part of this chapter, I examine the role of negotiation in the triggering of criminal proceedings, a stage hindered by competing informal mediations that take place in particular within gendarmeries and police stations. The second part considers placement in pre-trial detention, which illustrates the relations of domination in force and an instrumental use of the law- that is reinforced by the context of reform. In the final part of the chapter, I look at how trials can bring pre-trial detention to an end and serve as a key focus for the w'ork of international programmes.
The initiation of criminal proceeding, challenged by the existence of informal mediation
Examining the use of pre-trial detention invites us, first of all, to see criminal justice as a way of regulating social relations (Morelle 2015). In a plural normative context, conflicts that could be dealt with in a criminal court are often settled outside of the judicial system by neighbourhood leaders and families, or even in police stations and gendarmeries (COGINTA 2014). Recourse to state justice is viewed with suspicion as a costly, arbitrary' procedure (du Bois de Gaudusson 2014). The cost of judicial proceedings is incurred primarily by the parties, who must bear the costs of employing bailiffs, summoning the defendant(s), producing forensic reports, and even photocopying. Mistrust of the courts, the cost of proceedings, and the informal mediations conducted by law- enforcement officials all mean that much of the population avoids state justice.
Judicialisation and its constraints
If victims decide to file a complaint, their access to the courts is often hindered by law- enforcement officials’ attempts at mediation. Whether a case is sent to the courts depends on the will of the officers conducting the criminal investigation and on their ability to settle the dispute themselves. Negotiation and the informal resolution of disputes are the norm and official proceedings the exception. But there are a number of factors that may limit the ability of law' enforcement officials to resolve conflicts: the seriousness of the case; its prominence, whether politically or in the media; and the social isolation and deprivation of the suspect, who may not be able to pay damages to the victim.
Public pressure can be decisive in bringing certain cases to court. In several of the cases being pursued at the Maison Centrale, the defendant had been arrested and sent to prison following pressure from a mob. In one such case, a Susu merchant from the neighbourhood of Kaloum was accused of having clasped her partner’s genitals during an argument, leading to his death an hour later. Upon returning to the scene some time after the fight, she was confronted by a mob, which pursued her all the way to the gendarmerie, where she was arrested. Almost immediately after her arrest, a detention warrant was issued and she was sent to the Maison Centrale, even though there was no significant evidence to support the charge of manslaughter. In the face of the mass outrage against her, however, law enforcement officials were unable to mediate. Recourse to the courts was thus a means of social pacification.
Law enforcement officials’ autonomy may also be limited if the matter is very sensitive. In such cases, they work at the request and under the oversight of the prosecutor and the political authorities. This was the case, for instance, in the murder of a former minister and UNDP employee, who was shot while he was parking his car. The murder had been widely reported and commented on by the Guinean media. A Sierra Leonean driver, originally arrested for abandoning his family, was accused by his wife of organising the murder, as well as several other armed robberies, with the help of two friends. The woman later retracted the charge, claiming that law enforcement officials had forced her to accuse her husband. Nonetheless, he and his two alleged accomplices were interrogated and tortured. All three of them admitted to the murder and a number of thefts and were presented to the media on the day they were handed over to the courts and transferred to the Maison Centrale. The exposure of the accused in the media is typical of state treatment of such crimes. The release of details about their modus operandi, the names they had used during their crimes, and the weapons they used are meant to offer proof that the law enforcement officials had been effective (Camara 2015). Finally, the transfer of the case to the courts is supposed to demonstrate that the rule of law is operating as it should.
The setting in motion of public action and placement in pre-trial detention are thus used in a subsidiary way, when negotiations conducted during mediations organised by law enforcement officials failed or could not be undertaken.
Pre-trial detention: The emergence of new legal remedies and the persistence of relations of domination
The issue of placement in pre-trial detention arises only when the suspect has been moved from the police station and brought before a magistrate. Legal action then takes place through negotiations among the various actors, illustrating the power relations between those involved, which determine how rigorously the law is applied.
To some extent, a suspect can provide material or moral guarantees to encourage a magistrate not to place them in pre-trial detention. But their negotiating capacity depends on how important it is to hold a trial, especially when political interests are at stake. The assurances demanded by the magistrate may therefore vary. Retaining a lawyer may sometimes serve as a sufficient guarantee, even if they cannot practically do anything to ensure that their client is present at the hearing. Often, the required guarantee takes the form of a deposit of money or goods to ensure that the victim can be compensated, even in the absence of the accused. However, the parties, and even the magistrates themselves, often see such deposits as corruption. A magistrate’s trust may also be increased by the family and social group of the accused, particularly if they share acquaintances, come from the same neighbourhood, or belong to the same ethnic group.
A prison population reflecting social inequalities
In Guinea, as elsewhere, the lower classes are over-represented in pre-trial detention, making it a strong marker of relations of social domination (Fassin 2017). When I visited the court in Kaloum in May 2018,s the occupational categories most represented among the pre-trial detainees (118) were apprentices (15), students (14), merchants (14), craftspeople (16), and drivers (13). Some groups, like street children - often accused of theft or cannabis use - are often presumed guilty. Their age, isolation, and poverty give them a firm reputation as ‘bandits’ among magistrates, lawyers, and NGO w'orkers, leading to their near-systematic incarceration. Because they are minors, their legal guardians can in theory' have them released by a children’s judge, as long as the guardians take on full responsibility. It is rare, then, for these children to be tried and sentenced, even though some of them have already spent extended periods in the Maison Centrale.
More than half (60%) of the pre-trial detainees in the Maison Centrale had been accused of theft, of whom 36% w'ere accused of armed robbery'.  However, the most common criminal offences recorded w'ere rape (23%), homicide (10%), and assault and battery (10%). While the violence of the offence might seem to be a deciding factor in whether defendants were placed in pre-trial detention, the over-representation of inmates held there for long periods of time for simple theft or assault and battery' show's a disparity between the seriousness of the offence and the length of pre-trial detention. It is often isolated prisoners who are detained for long periods, not those accused of the most serious crimes. The length of pre-trial detention can be limited if family members, lawyers, or associations follow' a case through the courts and meet frequently with the examining magistrate or the prosecutor. Cases that are not monitored in this way are likely to be forgotten. The opportunities inmates are given to move around in the prison, to meet NGO workers, and to communicate with the outside world also affect the length of detention. The poorest and most isolated prisoners therefore have a higher chance of being held in pre-trial detention, and for longer periods.
While there are legal means to challenge placement in detention, the time limits for appeals, the requirement to use a lawyer, and the unpredictability of the magistrates’ application of the law all reduce their practical benefit, in spite of the attempts of the 2016 reform to regulate the length of pre-trial detention.
The uncertain effects of reform
The 2016 reform of the code of criminal procedure introduced a new means of challenging placement in pre-trial detention: any detainee could now appeal to the president of the court having jurisdiction over his case in order to challenge the grounds for their detention and to secure their release.  The advantage of this procedure is that the request for release is submitted to a new magistrate who is not responsible for the case. Lawyers have begun to use this method to challenge politically motivated incarcerations,11 but it remains rare in practice. A judge’s decision to place a defendant into pre-trial detention may also be challenged before the court of appeal’s investigation chamber. This appeal must be made within five days of notification of the pre-trial detention order. Such a short time period means that access to the court of appeal’s investigation chamber is limited to those who already have a lawyer when they are detained. The code of criminal procedure lays out strict consequences if the chamber does not follow procedure: the detainee is to be released. When it was created in 2016, the inquiry control chamber distinguished itself by applying these provisions in a number of cases, earning it a reputation among lawyers and magistrates for independence and incorruptibility. But such rigour is still dependent on the importance of holding a trial. In a politically sensitive case, such as the murder of the mother of a Guinean ambassador, the lawyer of one of the two co-defendants appealed their pre-trial detention order before the control chamber. Even though the deadlines imposed by the code of criminal procedure had not been respected in this case, the chamber refused to release the accused, unwilling to take the risk of releasing a defendant involved in such a politically sensitive case.
Challenges to pre-trial detention are essentially part of an informal logic, in which the written provisions of existing codes can serve as the basis for certain decisions but may still be set aside for practical or political reasons. As Dan Kaminski (2015) argues, Guinea provides a convincing example of the essentially instrumental character of the rule of law' in criminal justice, contrary to legalist theories. The contingent nature of legal norms can also be explained by the fact that certain provisions of the code of criminal procedure introduced by the
2016 reform are taken from French law, and are therefore inapplicable or at least inappropriate in the Guinean context (Le Roy 1997).
In any case, recourse to legal provisions to challenge a defendant’s placement in pre-trial detention depends on the defendant’s access to a lawyer during the investigation. The emergence of new legal remedies has strengthened the negotiating capacity of certain defendants, but it has not undermined the existing relations of domination, as poorer defendants cannot make use of these new procedural safeguards.
While a defendant’s release can be obtained automatically - for example, if the case has been misplaced by the court, or if their co-defendants have been released - in most cases a period of indefinite pre-trial detention is only brought to an end when a judgment is made, either releasing the defendant or sentencing them to incarceration.
Deciding cases: An end-point for pre-trial detention and a key issue of the reform
The increasing number of cases of extended pre-trial detention has drawn the attention of international actors and the Guinean authorities, who are attempting to reduce the length of proceedings and to make it easier to conduct hearings. Prior to the 2016 reform, criminal trials fell under the jurisdiction of an assize court composed of professional magistrates and a jury drawn from the general population. Lacking the resources to organise trials, and especially to summon and pay the jury, sessions were held once a year at best. The 2016 reform abolished these courts, transferring criminal jurisdiction to courts of first instance made up of professional magistrates. The creation of these courts has significantly accelerated the rate of hearings for criminal cases. Hearings are now held every week across the three courts in Conakry.
However, the mandatory presence of a lawyer during criminal trials still complicates proceedings. This requirement, which is applied strictly by magistrates, who refuse to hear a case until a lawyer has been retained, prevents those who cannot afford representation from being tried. Although the code of criminal procedure states that the system will automatically provide defendants with law- yers, this has not been implemented, as the funds to pay the appointed lawyers have not yet been allocated by the national government.
The unforeseen effects of the justice reform on the rights of the defence
To address this problem, in 2017 the UNDP justice sector reform programme set up a partnership with local NGOs to provide ‘jurisdictional support’ for poorer detainees. The same year, the International Federation for Human Rights established a ‘legal clinic’ project, consisting of sessions within the courts where lawyers could appoint themselves to the cases that had been scheduled for the day. They only had a few moments to talk to their clients and generally could not consult their files, which inevitably hindered their ability to defend them. Judgments in these cases were very quick, with lawyers and judges working jointly to hear the maximum number of cases. In fact, the description of the UNDP programme’s goal - ‘to strengthen justice sector reform and to produce short-term results in terms of access to justice and the fight against impunity’ - emphasises the primary objective of increasing the efficiency of the judicial system. These initiatives have enabled a significant rise in the number of criminal cases tried, with the UNDP claiming to have been involved in almost 235 criminal cases in 2017. However, this may have been to the detriment of the rights of the defendants, as the presence of a lawyer was essentially symbolic.
The sharp increase in the number of judgments following the 2016 reform and the introduction of these initiatives did not, however, lead to a decrease in the number of detainees held in pre-trial detention, which has remained relatively stable. The quicker decisions in these cases seem to have been accompanied by a corresponding increase in placements in pre-trial detention. This strengthens the argument that justice sector reforms that promote greater judicial efficiency are better at reinforcing the state’s coercive capacity, through the ‘consolidation of its repressive apparatus’ (Chataigner 2004), than at developing human rights.
Prison as a space for negotiating sentences
In spite of the hasty defence provided by these court-appointed lawyers, many detainees still sought them out so that they might be tried, since a trial appears to many to be the only way out of a detention of indeterminate length. If a detainee is convicted, their time in pre-trial detention is included in the length of their sentence, and it is common for those who have been detained for an extended period to be given sentences equivalent to the time they have spent in detention. This approach, w'hich is known as ‘condamnation au temps mis' (sentencing to time served), has the advantage of freeing detainees with little evidence against them without undermining the legal proceedings. The woman who w'as arrested after being accused by a mob was sentenced to five and a half years - the time she had spent in detention for manslaughter - even though the charge against her was not based on any solid evidence. Such sentences retroactively give pre-trial detention the status of punishment and maintain the integrity of the judicial system.
In addition to determining a punishment, the judgment imposing the sentencing of the pre-trial detainee marks the end of the judicial proceedings and the detainee’s dependence on the judicial system. As long as no trial has taken place, detainees must be kept available to the courts, but once a sentence has been passed, the prison administration regains the autonomy to apply it. Since there is no appointed sentence enforcement’s judge in Guinea, prison authorities alone determine whether a prisoner is released before or after the end of their sentence. In several of the armed robbery cases that I followed, the defendants explained that they wanted the trial to take place so that they could finally be sentenced, and thus begin to directly negotiate with prison officials how their sentence was to be carried out. Most of these highly pragmatic detainees had previously served time in the Maison Centrale and knew its informal workings well. They differed from ‘first timers’ who hoped to prove their good faith before the courts, which they believed to be less biased than the law enforcement officials they had been dealing with.
Examining pre-trial detention in the Guinean legal system reveals the variation in the application of penal norms and sharply reflects the relations of socioeconomic domination within the country. The irregular nature of each stage of criminal procedure presents a substantial threat for defendants, but it nonetheless opens up spaces of negotiation, allowing them varying degrees of influence over whether they are placed in pre-trial detention and how long that detention lasts. The new legal provisions regulating the use of pre-trial detention in the 2016 reform strengthened the ability of some pre-trial detainees to negotiate, giving them new ways to challenge their detention, without doing anything, however, to counter the arbitrary application of the law by judges.
In Guinea, the fact that pre-trial detention is typically long term rather than merely provisional means that it functions as a punishment, one that is only brought to an end by a trial. Detaining an individual before their case is heard does not just allow the investigation to proceed correctly; it is a necessary condition for the very existence of criminal trials. Pre-trial detention illustrates then the interdependence between the carceral space and the judicial space, revealing a use of the law that is to a large extent negotiated (Bouagga 2015).
In Guinea, programmes that aim to increase judicial capacities through the establishment of criminal courts, as well as programmes that pay lawyers to represent those held in extended pre-trial detention, have led to a rapid acceleration in the number of criminal cases tried. But this speed has been obtained through hasty judgments that pay only lip service to defendants’ rights. And in spite of this acceleration, the number of pre-trial detainees in the Maison Centrale in Conakry has remained stable, suggesting that the number of detention orders has increased correspondingly and, consequently, that judicial repression has become more acute. This teaches us, once again, that the aim of moralising and humanising confinement often brings with it the consolidation of the repressive apparatus of the state.
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