STRATEGIES AND BEST PRACTICES AGAINSTOVERCROWDING IN CORRECTIONAL FACILITIESI. Introduction
1.
Strategies for the reduction of prison populations spans a range of eﬀorts from stemming theflow of cases into the justice system; efforts towards improving the efficiency and effectiveness ofthe justice system for purposes of reducing delays and bottlenecks at the stages from arrest and pretrial detention; through to trial, sentencing, appellate proceedings and innovations of reducing thephysical stay of prisoners on custodial sentences in detention facilities. This paper however focuses onstrategies and good practices at the stages of stemming the ﬂow of cases into the justice system andthe pre-trial stage.
2.
Prison overcrowding results from high prisons admissions and few releases/discharges coupledwith delays in the trial processes in the formal justice system and the award of long prison sentenceswith limited use of parole. It could also be a result of limited use of alternatives to custodial sentencessuch as ﬁnes, community service orders, conﬁscation orders and suspended sentences.

II. Strategies and best practices against overcrowding - the case of Uganda
3.
Interventions to reduce overcrowding in prisons have included both government and civilsociety as complementary duty bearers as well as building of strategic partnerships of between
government and civil society organizations. Furthermore, the use of multidisciplinary teams in theprovision of legal aid services has proved vital in offering comprehensive and effective services.
Speciﬁc strategies and practices that have contributed to the reduction of prison overcrowding include;a.

Prevention of cases getting into the formal justice system through use of alternative dispute
resolution including traditional justice mechanisms - these are restorative in nature andpromote reconciliation and settlement of disputes outside the formal justice processes; Local
Council Courts - Community based semi- formal institutions to handle disputes without arrestand detention powers; family members including clan leaders and religious leaders also resolve
disputes for purposes of stemming the ﬂow of cases into the formal justice system. It should
however be noted that these are relevant for minor and often domestic related cases that are
not capital oﬀences.

b.

Weeding out non-founded cases from the formal justice system such as formal withdrawal ofcases through the Directorate of Public Prosecutions, mediation and reconciliation. Paralegals
working in the criminal justice institutions identify and document deserving cases or those thatare erroneously forgotten in the system and bring them to the attention of judicial oﬃcers. In
cases where complainants report to have lost interest in pursuing the matter through court
or where they are not willing to testify in court to help court complete the trial process,Paralegals arrange for both parties together with police to write additional statements in liaison
with the Prosecution department to formally withdraw the case hence securing releases fromprison.

c.

Legislative and policy amendments such as lowering the jurisdiction of cases from High Court
to lower courts such as the Chief Magistratesʼ courts. High court sessions handle criminal
matters at an average rate of twice a year in a magisterial area. High Court was previously169responsible for trial of all deﬁlement cases. This created a huge backlog of cases due to thelimited number of High Court Judges and resource constraints. The legislation on deﬁlement
was revised to separate simple defilement - involving a minor victims fourteen years andabove to be tried at the Chief Magistratesʼ Court while aggravated defilement - involving aminor victims below the age of fourteen was left in the jurisdiction of High Court. This led toa reduction in prison populations because Chief Magistratesʼ courts are in session through out
the year. The campaign against death penalty has also yielded results including the review ofinmates on death sentences which has led to overturning some death sentences and consequent
releases.
d.

Institutionalization of pro bono services to encourage faster case disposal through representationin court especially for the indigent. The initiative relates to advocates in private practiceand non governmental organizations as well as services of Paralegals. Pro bono services
supplement government efforts in provision of legal aid through advocates to represent
prisoners. The initiative also improves legal awareness of prisoners to enable them become
active participants through eﬀective demand for justice.

e.

Within the legal and policy framework, there are provisions in the formal justice system thatencourage out of court settlement of disputes at various stages. Examples include;• The Family and Child Protection Unit at Police which handles domestic disputes aiming
at prevention of petty/minor cases from progression into the formal justice system. This
reduces the possibility of ending up in incarceration.
• Magistrates Court Act Cap 16 Section 160 provides that in criminal cases, a MagistrateʼsCourt may promote reconciliation, and encourage and facilitate the settlement in an amicableway, of proceedings for assault or for any other oﬀence of a personal or private nature, notamounting to felony and not aggravating degree, in terms of payment of compensation orother terms as approved by the court.
• In civil cases a magistrates court shall not deprive any person of the benefit of any civil
customary law which may be applicable that is not repugnant to justice, equity or good
conscience or incompatible with any other law - Section10 Magistrate Courts Act Cap16• Most legislation promotes the principle of using incarceration as a last resort in pretrial.
Examples include, provisions minimizing detention of juveniles and reduction of statutory
remand periods 60 days for non Capital oﬀenders and 180 days for capital oﬀenders. These
were revised from 180 days and 360 days for petty and capital cases respectively.
• Willingness to try out and adopt new innovations to address overcrowding in places ofdetention such as the Paralegal Advisory Services programme.

III. Paralegal Advisory Services Programme
4.
The Paralegal Advisory Services Programme provides basic legal aid services aimed at
improving access to justice for poor persons caught up in the criminal justice system. It addresses theproblems of overcrowding in police cells and prisons as well as delays in the criminal justice system.
5.
The programme promotes the interventions of Social Workers and Paralegals working in
all the criminal justice institutions on a daily basis as a link on behalf of the suspects and prisoners.
They provide ﬁrst legal aid through general advice and education to persons in conﬂict with the lawand their relatives in consultation with the officials of the criminal justice institutions i.e. Police,
Prosecution department, Courts, Prisons and Remand Homes. Although the Paralegalsʼ and SocialWorkersʼ interventions target suspects and prisoners, they also assist the victims as well as improve
communication and coordination among the justice institutions.

170

6.
Objectives of the Paralegal Advisory Programme relating to the reduction of congestion inprisons include the following;a.

To contribute to the process of physical and case file decongestion in the Criminal Justicesystem through;• Stemming the flow of non founded cases into the criminal justice system - at police andcourts as well as following up and identifying cases in prison.
• Reducing the proportion of petty oﬀenders on remand• Diverting the petty cases from the criminal justice system to Alternative Dispute Resolution
and traditional systemsb.

To link the demand and supply sides of the Criminal Justice System through;• Training suspects and prisoners in self representation to allow for reduction of wastage ofcourt time
• Facilitation of quality sureties to help suspects and prisoners on pre-trial access police bondand court bail respectively• Linking suspects to communities to allow for settlement of disputes out of the formal justicesystem as well as standing as sureties to access police bond and court bailc.

To change practices within the Criminal Justice chain through advocacy and civic engagement

Congestion in prisons also results from loop holes in legislation and practices or non adherence tostandard procedures and guidelines. The PAS programme engages in;• Practice Advocacy to ensure that there is issuance of practice directions to reducebottlenecks in the administration of justice• Modiﬁcation of practices where necessary through civic engagement with the stakeholders
in the administration of justice. This is achieved through identifying and proposing
alternative practices to ﬁll practice gaps
• Encouraging enforcement of enabling legislation and practice standards.

IV. Challenges of Reducing Prison Populations
7.
Challenges of reducing prison populations relate to poor enforcement of standards, inherent
challenges in the strategies and practices as well as the limited use of modern technology for improving
access to justice.
a.

Failure to enforce enabling legislation and programmes such as the pro bono services and low
adherence to standard guidelines. This stems from resource constraints including; human,infrastructural, and ﬁnancial constraints.

b.

Challenges of sustainability of innovations such as the Paralegal Advisory Services. Most
innovations are initiated and managed by civil society organizations which depend on funds
from international development partners.

c.

Chronic delays in the administration of justice. These stem from systemic and technicalinconsistencies.

d.

Limited acceptance of non- lawyers in the administration of justice. The concept of using
multidisciplinary teams in the access to justice arena is still relatively new on the Africancontinent. Interventions to improve access to justice have largely been relegated to the law
profession.

171

e.

Absence of a national legal aid policy to allow for equitable access to justice especially for theindigent. This in most cases leads to the limited commitment of government as the major duty
bearer of legal aid service provision.

f.

Lack of sufficient preparation of the communities to receive persons out of prisons on
pretrial and lack of public acceptance for suspects and prisoners on pretrial such as those on
police bond, court bail, and parole. The suspects and prisoners are harassed, alienated andstigmatized. This in most cases leads to re-oﬀending manifesting as recidivism and at worst it
has resulted into mob justice.

g.

Most discussions and decisions do not reach the lower levels of staff in the justice systems
that have direct interaction with the prisoners. Whereas initiatives such as the Chain Linked
Initiatives, stakeholder conferences improve coordination and cooperation in the justicesystem, the participants are often at management levels and information does not adequately
trickle down to the oﬃcers who would implement decisions.

h.

Incomplete support systems for the integration of prisoners into communities. There areinstances when prisoners are released but due to lack of transport to their home areas, they
are left stranded in the localities where they were incarcerated so they end up re-oﬀending in
the process of trying to fend for themselves or ﬁnding transport to take the back home.

i.

Whereas Community service has proved to be an eﬀective alternative to custodial sentences,the challenge of follow up to ensure compliance has been a major set back. This is in part due
to the lack of tracking changes in addresses especially in urban slum areas of Africa where
many oﬀenders reside.

V. Conclusion
8.
There is recognition that even when there is enabling legislation, adherence to minimum
standards, eﬀective and functional justice system, there could be some practices especially relating
to following due processes that are counter productive and could be contributing to delays in theadministration of justice leading to prison overcrowding.
9.
In recognition of the challenges for Africa in the use of technology such as surveillance andelectronic tagging devices, diversionary measures such as house arrest, suspended sentences andcurfews are diﬃcult to use hence the need to develop tailor- made community strategies based on the
traditional justice mechanisms to follow up prisoners on early release from prison.
10.
Most of Africaʼs prison management are grappling with the basic challenges related toovercrowding such as feeding, sanitation, security of prisoners that they do not have adequate ﬁnancial
and human resources to address specific needs of prisoners such as the mentally challenged, drugrelated or terminally ill and elderly prisoners.
11.
Recidivism remains a major contributor to prison overcrowding. In most of the Africancountries with no national identiﬁcation systems in place coupled with inaccessibility and use of modern
technology and tracking mechanisms, the rates of recidivism could be much higher than recorded
because prisoners change identities which are not detected hence passing as ﬁrst time entrants into
prisons.
12.
Whereas caution should be exercised in building of more prisons as a strategy for reducing
prison overcrowding, consideration of the growing national populations and the escalation of crime
coupled with depreciation of physical infrastructures should not be disregarded.

172