Last week, the Foundation for Human Rights Initiative and Penal Reform International jointly organised a workshop in Kampala for 23 judges and members of the Judicial Studies Institute. The workshop sought to raise judges’ awareness of provisions regarding non-custodial measures in the UN Bangkok Rules. The participating judges were working in magistrates courts which means they deal with the bulk of criminal cases in the country – all save the most serious which are heard in the High Court. They are therefore key actors in implementing the Bangkok Rules in the daily work of their courtrooms. Here, PRI associate, Frances Sheahan who co-led the training with FHRI colleague, Diva Mukisa, reports on the discussions.
The Bangkok Rules recommend the use of non-custodial measures for accused women where possible – this is highly relevant in Uganda given that, according to the findings of a survey conducted by FHRI and PRI in 2015, over half of women prisoners surveyed were in pre-trial detention. The Bangkok Rules also recommend that gender-specific factors should be taken into account by courts when sentencing women offenders in order to reduce the gender specific risks of recidivism and that community sanctions should be preferred. In practice, this means that courts should recognise any history of victimisation of women offenders as well as their caretaking responsibilities including the harmful impact of imprisonment on children. These provisions are highly pertinent in Uganda since the FHRI/PRI report found that 92% of women prisoners surveyed had caretaking responsibilities and 37% had experienced domestic violence. Furthermore, the population of women prisoners has steadily increased in recent years: currently the female prison population stands at 2,065 up from 1,447 in July 2012.
There was broad consensus amongst participants in the workshop that the women who pass through their courts are overwhelmingly poor, socially marginalised, often from unstable family backgrounds and frequently single mothers and/or pregnant. They are uneducated and have backgrounds of domestic violence and victimisation through discriminatory practices such as female genital mutilation, early marriage and polygamy. They are largely ignorant of the law and lack legal representation particularly in rural areas where lawyers are few and far between. They face stigmatisation from their communities because of their involvement with the criminal justice system. Substance abuse was a factor in some cases but this was not a frequent occurrence. One magistrate commented that: ‘The women are stressed, they live stressful lives’.
There was also agreement that there are many benefits to keeping women out of prison in Uganda. From a practical point of view, community sanctions are cheaper and reduce the pressure on an already over-crowded penal system. Community sanctions mean that the family unit is maintained. This has enormous advantages for any children in the household who will continue to be protected and cared for and can remain in education for longer. This in turn may prevent their future offending; girls in particular may be prevented from entering into sex work or early marriage as a survival mechanism. It was noted that women experience violations of their rights in prison and this can hinder their rehabilitation and reintegration when they leave prison which may result in future re-offending. It was also commented that ‘sometimes society demands imprisonment’ and that there could be a public perception that taking into account women’s caretaking responsibilities would be treating them too leniently. The Bangkok Rules are clear that public perception is important and therefore encourage public awareness of the reasons why women come into conflict with the law.
The magistrates raised a number of challenges which they felt prevented them from using more non-custodial measures for accused women: many women struggle to find appropriate sureties for bail because of their poverty; refugees in particular find it hard to prove they have a fixed place of abode; many women don’t have a lawyer at all and even if they are represented, lawyers rarely have sufficient time to discuss their case in advance and to uncover key aspects of a bail application such as a woman’s pregnancy. It was suggested that cash bail was not always the best option when dealing with poor women and that it was also possible to find out from a local chairperson where a woman resides to ensure her attendance at court and that this can be reinforced by telling the accused that they must report to court even if given bail. It was also suggested that access to lawyers should be improved especially in rural areas.
In Uganda non-custodial sanctions include the imposition of fines and cautions and community service orders are available for offenders who have committed a petty offence punishable by imprisonment of no more than two years. Participants wanted these orders to be strengthened so that the people supervising compliance were properly trained and they could have more confidence that offenders would actually meet their obligations to perform the community service: ‘Community service is the biggest milestone for us to reach’. The magistrates also commented that pre-sentence reports are provided by the police rather than probation officers and these police reports are often inadequate in the level of detail provided but also are often absent entirely from the court file. This means magistrates do not always have a full understanding of women’s backgrounds and caretaking responsibilities at the point of sentencing – there is great scope for these reports to be improved. Magistrates also recommended that new sanctions could be introduced, such as suspended sentences, and that rehabilitation services for women offenders need to be developed by for example introducing half-way houses where women could care for their children and receive vocational training before their release.
The magistrates called for ongoing sensitisation of judicial officers at all levels on the Bangkok Rules including through incorporating gender issues into the curriculum of the induction and refresher courses provided by the Judicial Studies Institute. They suggested introducing legal aid centres so that women can access quality legal representation regardless of their economic circumstances. Finally, they recommended that steps should be taken to empower women economically as financial dependence on men can be a significant causal factor in domestic violence.
Uganda already has a gender policy applicable to the judiciary and advisory Sentencing Guidelines from 2013 that have strong provisions regarding the sentencing of women with caretaking responsibilities. Despite this and the many efforts at judicial sensitisation that have already taken place, in practice it is still the case that women are often denied bail and are handed custodial sentences without due consideration of their background and caretaking responsibilities. FHRI and PRI intend to use the outcomes from this discussion to inform future initiatives aimed at reducing the imprisonment of women in line with the Bangkok Rules.
Download the background paper for the event and the agenda.
Read a Short Guide to the UN Bangkok Rules
Read Who are women prisoners? Survey results from Uganda