Republic of Congo: starting from scratch

Paul Mbanzoulou. The second phase of the European Union’s Project of Actions to Strengthen the Rule of Law and Associations (PAREDA) was set up to support the Congo’s Ministry of Justice and Human Rights in drafting and revising eight legal codes, including the Penitentiary Code. With PAREDA’s assistance, the Congo set up a commission for each code, with sub-commissions and plenary commissions. I was responsible for drafting the first version, which was submitted to the penitentiary sub-committee for examination, and then to the plenary session with all the experts and members of the other sub-committees. The penitentiary sub-committee was chaired by a professor of public law. The Director of the Prison Administration was Vice-Chairman, with the participation of magistrates and prison staff of various ranks, as well as other partners, such as representatives of NGOs. The prison administration was keen for this sub-committee to be representative in order to facilitate acceptance of the code.

My mission began with some research. The terms of reference called for the drafting of a Penitentiary Code that would consider the following points, based on best practices in force around the world and the minimum rules of the United Nations: prison regime, classification of prisons, standards of detention, staffing of the prison administration and other aspects of best practice. I reviewed and analysed the relevant national and international texts, in order to construct a text that incorporated international legal standards as its guiding framework. This analysis was crucial, given that the drafting of the Congo Penitentiary Code was carried out ex nihilo, insofar as the material to be codified was virtually non-existent. It had to be found in foreign references and UN texts (with the exception of a non-codifiable decree on the organization of prison administration).

I suggested identifying best practices in the organisation and operation of prisons, disciplinary regimes, detention conditions, as well as the rehabilitation and re-education of prisoners. The French model, which I am most familiar with, served as the basis for my thinking. I also drew on other models, notably that of Algeria, which was also the result of a close collaboration with ENAP.

During the first phase, I had to produce a preliminary draft of the code in line with the terms of reference and international standards. This work then had to be presented to a sub-committee for analysis or amendment.

I then had regular meetings in Brazzaville with the members of the commission, where I presented the latest developments in my work. As the work progressed, we adjusted certain points, with pedagogy at the core of the process, because in essence, this sub-commission had become a training ground. It was crucial for me to explain what was at stake in each proposal to convey both the general intention and the proximity to the international models on which they were to be based. The Congolese government had committed to transposing a certain number of international texts into domestic law after having signed them. After the document had been adopted by the penitentiary sub-committee, it was presented to the plenary commission. Here too, amendments were made.

I did not take part in the subsequent stage, which involved the organisation of national restitution workshops. PAREDA’s technical team was tasked with presenting the various codes, in particular the Penitentiary Code, in the major cities and main legal jurisdictions. These workshops led to further amendments, which I had to arbitrate by justifying my decisions. I incorporated a large number of amendments, but also rejected many, on the basis of the overall structure of the text, compliance with international standards and relevance to local conditions. I submitted the final report in April 2016, which was then handed over to the President of the Republic of Congo.

PM. The momentum of creation allowed us to test the limits of what was possible. At the grassroots level, staff needed their administration to be recognised and valued, so their day-to-day work could be reinvigorated. During the debates, statutory issues were very prominent, and these personnel were keen to codify them. There was a desire to modernise the administration, and this code became the means to achieve this. It also meant that staff were ready to accept changes surrounding the fundamental rights of prisoners. They were ready to discuss the deprivations that are inherent in detention and those that are not, in order to improve the situation of prisoners. The staff also wanted to give credibility to the prison administration’s social reintegration mission, with identifiable and assessable content. The context seemed rather favourable and the discussions were very lively, which greatly facilitated my task.

The chairman of the sub-committee had a vision that differed from mine on certain issues. He asked about the exercise yard in the first version of the text, and why prisoners should be allowed to go for a walk while they were in prison. I explained to him the importance of this point, but he found it very hard to imagine that the code could allow for walking time.

We had discussed at length the punitive dimension of punishment, and that a priori it would remove liberties, undermine respect for people’s dignity, their health, etc. My aim was to get him to accept that, in this code, the fundamental rights of prisoners should be given precedence. I was delighted to find this point in the final version of the law promulgated by the President of the Republic.

The sub-committee also discussed the term “incarcerated person”. It was important to me that participants, and society as a whole, understand that people in detention are still people. Some participants pointed out that the text would be weighed down by the repetition of the words “incarcerated person”, whereas everyone understands “inmate”. To convince them, I said: “When we say ‘inmate’, you get the impression that there’s a real otherness between you and them, between us and them. But when we say incarcerated person, there’s already something that unites us. They’re people like you and me, and the difference is that they’re prisoners and we’re free. To say incarcerated person and to say inmate doesn’t imply the same positioning, nor the same outlook”. When I saw that “incarcerated person” had remained in the final version, I knew it was a triumph, however small.

PM. Even still, many challenges await us today. The prison administration’s concern involves quickly publishing the application texts on the special status, the different units or jobs of the paramilitary corps, the uniforms and other attributes, the creation of an ENAP, etc. For the moment, it is focused on the practical implementation of the Penitentiary Code. We hosted the current Director of the French Prison Service at ENAP in France in 2016, to present the school and see how we could help them. There’s a real need to train agents to become specialised prison staff. Until now, their administration has operated with a general body of civil servants who were assigned to these prisons and subsequently found themselves posted elsewhere.

In my publications, notably my book on the social reintegration of prisoners, I have always defended the idea that the mission of social reintegration is a shared responsibility. We tend to hold the prison administration solely responsible, whereas this is a collective endevavor. I therefore suggested the creation of an interministerial commission to coordinate social reintegration and re-education activities. Its mission would be to define and monitor the implementation of activities that contribute to the reintegration of prisoners, prevent recidivism, ensure security, respect for society, etc. It would define the content and means of such activities, and would monitor their implementation. The final law incorporates this provision, but it now needs to be given real substance. I proposed a fairly broad composition for this commission, which would also be open to victims’ aid associations. I had to do a lot of educating to relay how to enhance this process, the role it can play in boosting reintegration policies and developing areas of activity. I argued for this mission to include the judicial and penitentiary authorities, which implied strengthening the sentence enforcement commission and the re-education commission in the establishments. This approach was adopted in the final document.

The question of the accommodation also presented a challenge. Given the current situation in the Congo, I suggested that shared cells should be the norm and that individual cells should be the exception. I had two reasons for proposing this reversal of the usual standard. Firstly, the current building layout, a product of the colonial era, makes it impossible to imagine individual cells. New establishments will be built, but I wasn’t convinced that there would be the capacity to build facilities where individual cell confinement would be the rule. Secondly, the Congolese tradition in families is communal living. People live together and share their daily lives. It is therefore realistic, in detention, to have people living together, provided that the capacity of these cells is accurately determined, taking into account the space that can be occupied by each individual. Individual cells must nevertheless be provided for cases of contagious disease, special needs, disability, age, etc.

Despite having greater resources than the Congo, France has never managed to guarantee individual cell confinement in prisons since 1875. We go from moratorium to moratorium. In the Congo, I felt it was more realistic to advocate collective cell confinement, which is better suited to Congolese culture and resources. Why get trapped in a hypocritical position that would always have them at odds with reality? My counterparts knew full well that it would be impossible to respect the individual regime, whether in the short or medium term. As a result, parliamentarians opted for the joint holding system.

Finally, I defended the idea that, in a country with an oral culture like the Congo and where palaver plays an important role, the prison administration should be obliged, in the event of disciplinary infractions, to examine the possibility of mediation before considering disciplinary sanctions. At ENAP in France, we’ve been developing this for a year now. We have established professional mediation training courses. These mediations enable conflicts to be regulated before they reach the point of violence. I argued in favour of this idea, which has now been incorporated into the law. The regulations are a little more explicit about the implementation of these mediation measures. It also specifies that mediators must be trained. Here as well, I think that if the Congo gave itself the means to implement this practice, tensions could be eased without having to resort to disciplinary sanctions which, in reality, would further increase conflict between prisoners.