Prison is often presented as a one-size-fits-all response to offending. However, it was not introduced in many areas of the world until colonisation. Other forms of justice preceded it, which defied the logic of imprisonment – based on mediation, reparation or collective responsibility. These systems were not always devoid of hierarchy or violence. They did, however, attest to the existence of other ways of thinking about justice, that the colonial project marginalised, denied or destroyed in the name of “civilisation”.

The justice systems that existed prior to the colonial periods were typically designed and centred around the group, with different forms of conflict resolution and punishments. In Côte d’Ivoire, for example, “fines were not paid to the State, as is the case today, but were primarily given directly to the victim or their family, to compensate, in some way or another, for the offence committed”, explains Paul Kouadio, President of the Action by Christians for the Abolition of Torture in Côte d’Ivoire (ACAT-CI).

Before British colonisation, the Indian subcontinent operated under a mix of Islamic law (Sharia), customary tribal laws, and local Hindu legal traditions. Justice Project Pakistan (JPP) mentions the role of jirgas (tribal councils) and panchayats (village councils), which focused on community-based mediation and conflict resolution rather than punitive measures. “Under Mughal rule, the judicial system combined Islamic law and administrative codes”, explains Sarah Belal, Executive Director of JPP. “There were various punishments: restitution, public shaming and, in the most serious cases, corporal punishment.”

In Kanaky New Caledonia, Alban Bensa and Christine Salomon point out that in villages where everyone knew each other, the issue was less about establishing and recognising the offence and more about removing disturbances to the social order through reparations for the harm done. All offences were seen as injuring the community, first and foremost. As such, the punishments could be separated from individual responsibility. In cases of destruction of property or theft committed by teenagers, researchers explain that all of the young people in the community, including the victim, might be publicly whipped to remind them to submit to their elders. Most of the time, this was accompanied by a process of social reconciliation, with the presentation of apologies and symbolic compensation.

The role of the judge was not static, with the person designated to mediate changing based on the offence committed and the identities of the accused and the victim. In Côte d’Ivoire, Paul Kouadio notes that family members of the people concerned often served as judges.

In Canada, certain First Nations stipulated that a person who committed a crime had to offer their services to the victims. Pierre Rousseau, a retired lawyer and former federal prosecutor, explains that when the Europeans arrived, they boasted about the fact that the indigenous peoples lived in the era of an eye for an eye and a tooth for a tooth. Yet “they knew full well that that type of approach could be found in European cultures”, he writes. “For example, at the time, in the event of murder, the rule was ‘a life for a life’, punishable by public execution, whereas with certain indigenous peoples, the perpetrator of the crime had to dedicate the rest of their life to serving the family of the deceased.” 

The most severe sentence was often exclusion from the group. In Côte d’Ivoire, “the person could be banished from the community for a while, but not permanently, not for life”, notes Paul Kouadio. In Pakistan, JPP says that “there was limited use of incarceration – emphasis was on compensation and community harmony rather than isolating offenders”.

In Nigeria, places of confinement or “houses” existed in the western and northern parts of the country. Researchers Viviane Saleh-Hanna and Chukwuma Ume report that these places housed people who had been banished from the community, without the goal of stigmatising or demonising them. “The purpose of these forms of confinement was to secure community safety, and there was never a total separation of offenders from the community for extended periods.”

Colonisation was not limited to conquering lands and bodies: it also brought with it a new method of social control, with prison at its core. The prison institution was part of an approach to control colonised populations, which were often deemed “undisciplined”, “savage” or “recalcitrant”. Behind the discourse about civilisation and modernising the law, imprisonment addressed certain strategic needs: suppressing resistance, silencing dissenting voices and breaking down pre-existing organisational structures. As empires extended their influence, prison became a critical component of the architecture of colonial violence.

As such, prison’s purpose was first and foremost political. It was used to suppress opposition to colonisation by isolating and confining its critics, enabling the colony to take root and grow. In Kenya, prisons were among the first buildings to be constructed by the British as they established their colony. The Elephant reports that within 16 years of their arrival in 1895, they had built 30 prisons. The same is true in Pakistan: JPP indicates that the British authorities fundamentally transformed the justice system, introducing a carceral approach that favoured imprisonment as the primary form of punishment. Starting in the late 1700s, they established modern jails as part of a broader project of population control, surveillance and social ordering. Entire groups, including nomadic tribes, occupational castes and political dissidents, were labelled “criminal tribes”, leading to mass surveillance and systemic incarceration. “It was all about punishing and maintaining control”, explains Sarah Belal. “Order was maintained by prison and not by the subcontinent’s indigenous leaders, who (…) opted for reparation rather than punishment. The British had no regard for these forms of justice. As such, prisons – and, in particular, the issue of who was held in them – became a key tool in maintaining order and colonial control.”

In Côte d’Ivoire, the colonial authority was different, but its objectives and practices were similar. “Prison was intended to sanction and punish people who opposed colonial exploitation”, say Paul Kouadio and Lionel Grassy, Advocacy Director at the International Federation of ACATs (FIACAT). “In fact, that was the primary reason for implementing the carceral institution in the colony, not to regulate community life. The first people who found themselves incarcerated were those who resisted.”

The arrival of colonists in Canada had the same effect on native populations. Prison represented a tool to suppress and erase the ancestral justice practices. Pierre Rousseau describes how the governments sent the police to the villages and reserves in order to reaffirm their colonial status. This intervention aimed to replace the ancestral social control exercised by the families and the elders. The state justice system, he says, became an essential component in the mission to assimilate and “civilise”. It was imposed across the entire Canadian territory, without consulting with or gaining consent from the indigenous peoples. Researcher Vicki Chartrand points out that the justice systems helped establish the colony across the territory through the passing of British laws and the establishment of a federal police force and a national court of justice. “To manage the colonies and secure dominion, penitentiaries would be strategically erected in the more populated areas of the province within five to seven years of joining the federation”, she writes. “This was considered to have a ‘commanding and salubrious’ effect on the population. As a structure of modern progress, the penitentiary symbolized advancement for the colony in modernity’s quest to establish the laws of the land and eradicate ‘evils’ through humane discipline.” Under the Indian Act, the British Crown imposed increasingly strict controls throughout the 1880s. These restrictions sought to prohibit traditional ways of life, and in particular spiritual and religious ceremonies, such as the potlatch and the sun dance.

In Kanaky New Caledonia, the Native Code, introduced in 1887, subjected the Kanak population to taxation and forced labour and, according to anthropologist Christine Salomon, criminalised a variety of behaviours that were specific to them: “for example, going to the European village without permission, walking ‘naked’ – i.e., in Kanak clothing – along the road, clearing fields with fire, holding parties at night…”

Prison also served a financial purpose. The colonial powers sought to limit their economic losses by rendering the colonies self-sufficient. “Prisons appeared with colonisation and with its need to better exploit the colonies and potentially sanction anyone who would hinder colonial exploitation”, say Paul Kouadio and Lionel Grassy. In Côte d’Ivoire, the French authorities therefore forced the colonised population to submit to taxation, starting in 1900. Those who refused were automatically imprisoned and forcibly employed doing community service. This led to researcher Zae Fidele’s view that imprisonment represented “a way to break down the hostility of the indigenous populations regarding tax collection”. This resulted in the large-scale imprisonment of colonised populations. Although Europeans were also incarcerated in the colony prisons, notes Zae Fidele, they lived in better conditions.

Colonised women were not only subjected to racial and economic domination: their oppression was intersectional, and they were perceived as bodies to be surveilled, disciplined and reformed. In Brazil, Alice Quintela Lopes Oliveira, a member of the research group Penal Colonisation in Latin America and the Caribbean (Colonisation Pénale en Amérique latine et aux Caraïbes, CoPALC), explains that in the colonial era, the women were quite often incarcerated when they no longer fulfilled the role expected of them, as a mother and/or housewife. This situation affected Black women in particular, who could not allow themselves to remain in the home to take care of their children, due to insufficient income. “They had to go out, sell what they cooked, offer their services as washerwomen”, indicates the researcher. “But being in the street, occupying the public space, carrying out these odd jobs, that’s already seen as a transgression. They were then seen as unstable, ‘hysterical’. It’s one of the most common occurrences in detention: people go to prison without really knowing why, they stay there for a week, then they are let out, with no explanation.”