Koléa Prison in Algeria (photo by Habib Kaki, Wikimedia Commons)

Detention During COVID-19: What MENA Governments Are, Aren’t, and Should Be Doing

04/03/2020 . By Mai El-Sadany

Across the Middle East and North Africa (MENA), countries are taking measures in an attempt to curb the spread of COVID-19. These national responses have included the creation of emergency hotlines, awareness campaigns, stay-at-home orders, and curfews. There is one underemphasized issue that will remain central to a country’s success in “flattening the curve”: detention.

Why is detention a central issue amid COVID-19?

Every day—and as COVID-19 continues to spread in the countries in which they are held—convicted persons, pretrial and administrative detainees, individuals being questioned, and those on parole or probation interact with each other in prisons, detention centers, and police stations—facilities that are often under-resourced, unable to provide sufficient medical care, and severely overcrowded. They interact with police officers, prosecutors, prison wardens, prison doctors, and employees working at these facilities—all of whom commute from home, are in close proximity to family members, and interact with at least a limited part of the population when running errands and maintaining their everyday lives.

Inside detention facilities, the potential trajectory for the spread of the virus is alarming. In addition to challenges prison populations may face with regards to access to testing, there are a number of factors that make them specifically at-risk. Detainees may be particularly vulnerable to COVID-19 due to low levels of immunity and underlying health conditions; sanitizing and cleaning products are not readily available; and facilities are not designed to accommodate social distancing. Combined with the risk of those who move between detention facilities and the broader population in carrying or spreading the virus, the situation is one that merits comprehensive and immediate engagement from governments willing to recognize the severity of the public health crisis at hand.

What have governments done in response?

Countries in MENA have responded in varying ways.

One of the most visible measures taken by several countries in the region has involved the release and pardoning of detained persons. In Bahrain, for example, the King pardoned 901 prisoners; an additional 585 were ordered released and handed non-custodial measures. Iran temporarily released 85,000 detainees and slated an additional 10,000 to receive pardons. Turkey is drafting legislation that is expected to bring about the release of thousands of prisoners, the majority of whom will remain under house arrest. While Syria has issued a general amnesty, observers note that prior, similar decrees have not been implemented sufficiently, if at all. Other countries, including but not limited to Sudan, Tunisia, and Algeria have ordered thousands of releases as well; though some countries, notably Egypt (despite its large prison population), have not issued mass release orders related to COVID-19.

While countries in the region have made some general statements regarding the sanitization, quarantine, and health measures to curb the spread of COVID-19 inside detention facilities, information about these measures has tended to be vague and has been reported on an ad-hoc basis, generally through the media, rather than in a central database or via regular communication with the families of those detained. Media reports suggest that Morocco, for example, has announced that it has divided prison staff into two groups, each of whom will work for two weeks and will be subject to a set quarantine period thereafter. Turkey has also established isolation periods for prison staff. In Algeria, new prisoners are quarantined for 14-day periods and subject to health screenings. An Egyptian Ministry of Interior Facebook post lists the areas inside prisons that are being disinfected and sterilized.

Several countries have suspended or restricted prison visits. In Egypt, authorities first suspended in-person prison visits for a ten-day period that has since been extended for two weeks. While some Egyptian prisons have accepted cleaning supplies, food, and money from family members of detained persons in lieu of visits, others have not. In mid-March, Jordan similarly suspended in-person visits for a two-week period. Moroccan authorities have restricted, but not suspended visits; detainees continue to have up to one visitor and one visit per month.

A number of countries have halted court hearings and detention renewals. In Lebanon, for example, prisoners and detainees are no longer being transferred to judicial departments. In Saudi Arabia, court hearings have been postponed until further notice. In Egypt, detainees are not being transferred to court sessions or detention renewals; sessions are either delayed or in rarer cases, taking place without detainees present. New interrogations continue, however, as new arrests involving false news charges have been made.

Though particular measures within the region’s COVID-19 prison response have been markedly positive, others have been insufficient; have not abided by the principles of legality, proportionality, necessity, and non-discrimination; and have had a considerable impact on other fundamental freedoms, including due process. Additionally, prison response in countries emerging from or in the midst of conflict, including Syria, Yemen, and Palestine/Israel, though immensely critical, has severely lagged. Recognizing this regional gap and following the engagement of civil society organizations, families of detained persons, and campaigners, the World Health Organization (WHO) and the United Nations Office of the High Commissioner for Human Rights (OHCHR) issued a joint global guidance on the topic that interprets international legal obligations and presents a number of practical solutions for governments to implement.

What should governments be doing going forward?

To remedy overcrowding in the region’s detention facilities, every MENA country should be taking emergency measures to actively decrease the prison population, including those in pretrial detention. The WHO-OHCHR guidance iterates: “Release of individuals, including children, persons with underlying health conditions, persons with low risk profiles and who have committed minor and petty offences, persons with imminent release dates and those detained for offences not recognized under international law, should be prioritized.” The U.N. Commissioner for Human Rights has added: “Now, more than ever, governments should release every person detained without sufficient legal basis,” including political prisoners. Releases should be made per a clear, transparent criteria to ensure non-discrimination in application, particularly as most of the region’s release orders and pardons have left out those convicted of or detained on the basis of political crimes.

Inside detention facilities, and as established in the Nelson Mandela Rules, countries are obliged to ensure the same standard of healthcare that is available for those in the broader population. The WHO-OHCHR guidance weighs in on making health screenings available; particular attention toward the elderly and those with underlying health conditions; and the provision of personal hygiene items, including soap and sanitizer, as vital preventative measures. In suspected or confirmed cases of COVID-19, detainees can only be isolated or quarantined in dignified conditions that are time-limited, in a manner that does not result in stigmatization, and only if alternative measures cannot be taken.

Information on the measures in place to prevent and curb the spread of COVID-19 in prisons should be made available to detainees, family members, and individuals working and interacting with detainees; specialized training should be provided to prison staff to empower them to effectively implement emergency response plans. Disclosing this information will help ensure that detainees and prison staff fully understand COVID-19, appreciate the severity of the situation, and can take measures to best protect themselves and those they interact with. It additionally helps sustain communication with family members who otherwise may have no information about their detained loved ones.

While the suspension of in-person prison visits may be necessary during the pandemic, the WHO-OHCHR guidance lists a number of alternatives, including “videoconferences, electronic communication and increased telephone communications (pay phones or mobile phones).” MENA countries would do well to recognize that visits are also often the only way that detainees receive additional resources, food, and medication; are key to detainee mental health; and can help reduce violence.

A final important area that the WHO-OHCHR guidance comments on is the issue of due process: “Ability to meet with legal counsel must be maintained…Suspending hearings may in fact exacerbate the risk of coronavirus in places of detention. Even in an officially declared state of emergency, States may not deviate from fundamental principles of fair trial, including the presumption of innocence.” To abide by these standards, several countries outside of the MENA region have begun exploring remote hearings that leverage technology.