Confinement, Punishment and Prisons in Africa

Marie Morelle, Frédéric Le Marcis, Julia Hornberger, Marie Morelle, Frédéric Le Marcis, Julia Hornberger

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000381511
• Edition: 1
• Topic: Historia
• Subtopic: Historia africana

This interdisciplinary volume presents a nuanced critique of the prison experience in diverse detention facilities across Africa.

The book stresses the contingent, porous nature of African prisons, across both time and space. It draws on original long-term ethnographic research undertaken in both Francophone and Anglophone settings, which are grouped in four parts. The first part examines how the prison has imprinted itself on wider political and social imaginaries and, in turn, how structures of imprisonment carry the imprint of political action of various times. The second part stresses how particular forms of ordering emerge in African prisons. It is held that while these often involve coercion and neglect, they are better understood as the product of on-going negotiations and the search for meaning and value on the part of a multitude of actors. The third part is concerned with how prison life percolates beyond its physical perimeters into its urban and rural surroundings, and vice versa. It deals with the popular and contested nature of what prisons are about and what they do, especially in regard to bringing about moral subjects. The fourth and final part of the book examines how efforts of reforming and resisting the prison take shape at the intersection of globally circulating models of good governance and levels of self-organisation by prisoners.

The book will be an essential reference for students, academics and policy-makers in Law, Criminology, Sociology and Politics.

Part I

The carceral imprint

1 Words, walls, and hierarchies

On some colonial legacies in the Burundian prison

Christine Deslaurier

Introduction

The Burundian prison system celebrated its centenary at the beginning of the 21st century with the greatest indifference, which contrasts sharply with the commemorations of recent years, during which the national authorities have not failed to denounce the damage and upheavals wrought by colonisation on local society. Yet, both as a mode of punishment and as a building built for that purpose, the prison has all the hallmarks of colonial exogeneity. Introduced by the Germans at the turn of the 20th century, it was generalised by the Belgian colonisers who succeeded them in the mid-1910s and remained in power until 1962. Today, a century after the construction of the country’s first central prison at Gitega in 1926, the country’s prisons’ premises retain the imprint of colonialism. Similarly, the procedures leading to incarceration and the regulations governing confined life, despite revisions, are still steeped in foreign principles and legacies, as are certain ways of dealing with inmates. In fact, the Burundian prison seems so trivialised that it is never decried or questioned as a colonial ‘import’, which makes the question of its adaptation to the national context central. How was prison appropriation achieved and on what basis were possible accommodations made? Is the Burundian prison today merely a rehash of its colonial beginnings or has its incorporation into society been facilitated by locally rooted repertoires of action?

The answers to these questions are varied and show that Burundian prison history, from its emergence as a mode of punishment to its trivialisation in the 20th century, oscillates between legacies and ruptures. It is not possible to uncover all these aspects in the present chapter, so the focus here is on the colonial trends and extensions of prison. Approached as a form of colonial remnant, the Burundian prison offers the image of an ‘imperial debris’ (Stoler 2008) where legacies persist and articulate with local moral repertoires to become established in contemporary principles of prison and prisoner management. The sources on which this reflection is based are rich for the colonial period in Belgium (Archives africaines de Bruxelles, AAB) and up to the early 1970s in Burundi (Archives nationales du Burundi, ANB), with documents that make it possible to address the prison question from many angles. For more recent periods, analysis of the archival source materials has been supplemented by books, memoirs, reports by the prison administration or human rights organisations, and by interviews with former prisoners and actors linked to the prison sector.

The colonial contours of punitive imprisonment in Burundi

The history of the prison in Burundi is linked to colonial penetration, since there were no punitive modalities of confinement in this kingdom for those who broke the laws and social codes before the arrival of the Germans at the end of the 19th century. In order to grasp the foundations on which the prison system emerged and then developed over a long century, the restitution of its main colonial characteristics is indispensable.

The trace of the chain, or the advent of the prison in German colonial times

In the face of crimes or transgressions, precolonial justice in Burundian society allowed reparations to be arranged by chiefs or bashingantahe, old ‘wise men’ arbitrating local conflicts (Rodegem 1966). This system removed the culprits from their community, and organised ordeals or radical revenge in the most serious cases (Meyer 1984, p. 131). Punitive confinement did not exist and only one exceptional circumstance of ‘detention’ was permitted: the confinement of a prince or chief awaiting the king’s judgment. The transfer of such a prince or chief to the court then required his temporary and supervised accommodation. If the verdict did not lead to his innocence or execution, no sentence implied his confinement: disqualification, confiscation of land or material goods, and the geographical distance of the condemned man were favoured (Simons 1943–1944, pp. 255–266).

Only during the German occupation (1896–1916) did detention become a punishment in its own right, although it continued to coexist with corporal punishment, deportation, and capital punishment (Chrétien 2015, p. 146). In reality, the judgments of the German authorities, which mainly dealt with cases of physical altercation, homicide, or rebellion, did not at the time form part of a desire to ‘modernise’ the justice system. Rather, it was a question of embodying political power over the so-called customary chiefs, whose punitive practices were still being respected in the context of the indirect government of the colonial territories (ibid.).

The detention of individuals thus introduced an innovation in punishment, without however a real penitentiary policy being defined by the German colonial power, neither in the legal field nor in the field of construction (De Wolf 2004, p. 334). Thus, while there is evidence of the existence of a prison alongside a military camp in Usumbura (now Bujumbura) in the mid-1900s (Biziyaremye and Kakunze 2011, p. 33), elsewhere it seems that financial issues stifled any prison construction. In Kitega (present-day Gitega), a town founded by the Germans from 1912 onwards with the aim of making it their capital in Urundi, the idea of building cells in the fortified boma building was abandoned after much debate, and it was wooden barracks that housed the prisoners when Belgian troops seized the town in 1916 (Chrétien 2015, pp. 69–70, 146–147). In the rest of the country, defendants were isolated in military camps or living quarters turned into ad hoc ‘cachots’ (literally ‘dungeons’) before they were sent to courts presided over by German officers (Wagner 1999, p. 487).

Ultimately, the Burundian carceral system has kept few traces of the German period, even if the boma, still standing in 2020 and occupied by a police camp, occasionally houses detainees. However, it has retained a vocabulary from that period marked by the beginnings of the application of custodial sentences, and in particular by the physical shackles they implied. Since then, speakers of the Kirundi language have referred to the prison and the prisoner by the term ‘umunyororo’, borrowed from Kiswahili ‘mnyororo’, which means ‘the chain’. Kiswahili was used by the askaris, the African soldiers supporting the German troops in East Africa, who were the first guards assigned to watch over Burundian prisoners, who were systematically chained.¹ Upon the arrival of the Belgians, Congolese soldiers from the Force publique (the Belgian colonial army in the Congo) replaced them, perpetuating the use of Kiswahili in the prison environment where the use of the chain only ceased in the mid-1930s.²

1 Tying (kuboha) a defendant was not an unknown practice in precolonial Burundi, but it was done with shackles (ibohero) of leather or rope (Meyer 1984, p. 131). Kirundi has endorsed this usage in modern vocabulary, since the words ‘imbohero’ or ‘ibohero’ also refer to prison as a neologism.

2 In 1933–1934, legal texts attenuated the regime of shackling prisoners, but it was Ordinance 11/253 of 12 July 1950 that definitively abolished its use in prisons (RABRU 1934, p. 34, 1935, p. 31).

The imprint left by Belgian colonisation on the Burundian prison system, on the other hand, is much more significant. Having settled in Burundi after the retreat of the German troops in 1916, the Belgians already had legal texts drawn up for their neighbouring colony of Congo, which they transposed to the territory of Ruanda-Urundi when they took the reins of its administration, adjusting them by means of special orders.³ This encouraged the extension of a legal arsenal that would increase the number of detainees.

3 Rwanda and Burundi were colonised by Belgium as the Territory of Ruanda-Urundi, but gained separate independence in 1962. First placed under a mandate from the League of Nations, then under the supervision of the United Nations (UN), the Territory was administratively united with the colony of Congo by the law of 21 August 1925. Congolese legislation was made enforceable there by ordinances of the Vice-Governor General of Ruanda-Urundi, abbreviated to VGGRU (Gahama 1983, pp. 44, 415).

‘Native’ criminalisation and the switch to the prison under the Belgians

Some of the legal instruments which governed the unprecedented development of punitive confinement in Belgian Africa from the 1920s onwards, which have been well studied elsewhere (Dembour 1991, De Wolf 2004, Cornet 2009), need to be clarified in order to understand the situation that prevailed in Burundi with regard to prisons.

First of all, it is necessary to account for the different standards and sentences applied to the ‘indigènes’ (in English ‘natives’, i.e., colonised Africans) and other individuals (i.e., Belgians, Westerners, ‘Asians’). The Congolese Penal Code, as applied in Ruanda-Urundi,⁴ did deal with “classic” offences such as murder, assault and battery, and theft, often involving long prison sentences. However, in addition to these, a range of offences charged solely against the ‘indigènes’, introduced from 1918 onwards, also led to short prison sentences, when they were not punishable by fines (Cornet 2009, p. 51). These ‘special offences’ were intended to enforce the new colonial order by punishing breaches of government regulations and administrative rules. They affected the various fields of public order, health and hygiene, trade and agricultural economics, labour, mobility, and taxation (ibid., pp. 57–67). Their implementation led to racial segregation in the distribution of sentences, which has been reinforced by the distinction made in prisons between ‘indigenous’ and ‘non-indigenous’ convicts, to which we shall return later.

4 The Congolese Penal Code of 19 December 1896 was made applicable to Ruanda-Urundi by an ordinance-law of 30 August 1924 and a decree of 10 June 1929; that of 30 January 1940 was made applicable by the ordinance of 18 May 1940. It remained in force until independence (De Wolf 2004, p. 335).

Secondly, the courts able to mete out punishments varied, depending on whether a defendant was a native or not and whether the crimes and offences were written law or ‘custom’. In theory, European courts tried non-indigenous people or received appeals from so-called customary courts that dealt exclusively with Africans and ‘applied custom as long as it did not contradict Western justice or morality’ (Cornet 2009, p. 53). But in practice, according to the interpretation of this restriction, colonial courts had greater latitude in their actions than ‘indigenous’ courts and, over time, it appears that, under the pretext of abuse by customary authorities (sometimes very real), colonial justice took precedence over customary law (Gahama 1983, pp. 302–307). A 1926 decree, amended in 1938, and above all the legislative ordinance of 5 October 1943 on the organisation and jurisdiction of indigenous courts, definitively confirmed this superiority (De Wolf 2004, pp. 334–335).

Belgian territorial officials, who were vested with important judicial powers thanks to these texts, used them to ensure the smooth running of their administration, i.e., by punishing many ‘special offences’. Thus, in the image of what the Code de l’Indigénat had encouraged in French colonial Africa, the criminalisation of all kinds of ‘asocial’ (not to say anticolonial) behaviour led to the ‘massification ...