The Socio-Economic Impact of Pre-Trial Detention in Kenya, Mozambique and Zambia

Abstract

The project was informed by an understanding of how socio-economic rights intersect with fair trial rights. The nature of the obligations on states, as set out in instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), are such that states should ‘respect’, ‘protect’ and ‘promote’ these socio-economic rights. The duty to respect entails an obligation not to interfere with the resources of individuals; their freedom to find a job; nor their freedom to take necessary action; and to use their resources to satisfy needs. Fair trial rights require inter alia non-arbitrary arrests; that the decision to detain is undertaken by a judicial officer; and that trial or release occurs within a reasonable time. In short, persons awaiting trial should not as a general rule be detained in custody. Socioeconomic rights intersecting with fair trial rights, essentially means that criminal procedural laws and practices must be designed and implemented in such a way as to ensure that the impact of interference with socio-economic rights on all persons, is minimised. Thus detention of an accused should only occur when absolutely necessary and for the shortest possible duration.