Regarding Rights

Academic and activist perspectives on human rights

Being Detained: Prelude to a thesis on Liberia and the rule of law

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By Shane Chalmers*

Centre for International Governance and Justice, ANU

‘Nimba County Prison Inmates, Liberia’ (photo: United Nations/Christopher Herwig)

‘Nimba County Prison Inmates, Liberia’ (photo: United Nations/Christopher Herwig)

The Training and Development Officer from the Corrections Advisory Unit of the United Nations Mission in Liberia is standing outside the prison gate, her white skin marking her out as much as her blue UN insignia. I have crossed this street innumerable times before but have never noticed the ‘corrections facility’. Its towering perimeter wall blends into the Ministry of Defence and military barracks that run alongside, but even these do not stand out in Monrovia; this could have been any other international NGO compound. The urban streetscape of Liberia’s capital city is dominated by walls topped with razor wire and patrolled by private security guards. Perhaps originally built to keep out war-time looters, they continue to be built ten years after the cessation of armed violence. Standing in contrast to the squatter settlements that serve the rest of the city’s nearly two million inhabitants—who reside in the hollowed out remains of war-torn buildings or in recycled shacks crowded into vacated plots of land and swamp—these walled compounds are one of most visible markers of urban life in post-war Monrovia, revealing in stark aesthetic form the equally stark socio-economic cleavage that runs deep through ‘the peace’.

The UN officer leads me to the main gate of the prison, where a Liberian man stands guard. She signs me in and escorts me through the outside perimeter. Inside, we come to the gate of a second walled perimeter where another Liberian man stands guard. A UN Formed Police Unit contributed by Jordan is stationed in the narrow yard between these two walls, to provide additional support to the Liberian Corrections Officers in case of unrest. Passing through this second gate, we come to a third perimeter, a high metal fence with a gate that opens into the main prison yard.

In the centre of this sandy yard I am introduced to two male UN corrections officers who act as mentors to their Liberian ‘counterparts’. As they offer statistics about the individuals who are contained in the prison, to illustrate the object of their rule-of-law mission, I become distracted by the sight of the shipping containers that serve as their office. There is something about these structures, in their constancy, in their iterability—capable of being hauled away at any moment, loaded on the back of a ship, to be set down in another country, in another hemisphere, to be of service again at any time—that jars with what I am being told by the UN officers about the need to address the plight of the individuals contained in the prison.

After the introductions, the UN officer and a prison guard escort me into the main prison building, a two-story structure, the few clothes hanging from the rusty bars of its second-story windows offering the only hint of life inside. It has several cell-blocks, including two for armed robbery, plus the juvenile block. All of the men in this building are ‘pre-trial detainees’; although, of the more than 960 men, women, and children in the Central Prison, some 800 are pre-trial detainees. Many have been in here for months and years, many, if not most, without access to legal representation or contact with the outside.

As we pass through a corridor a man calls out to me from behind the bars of his cell. He is highly articulate, with a North American rather than a Liberian English accent, and a cutting wit. He demands to know who I am and what I am doing there. I explain that I am a researcher from a university studying the legal system reform process. His answer holds me in contempt: ‘What more has to be studied? You don’t need to do more research to see that the justice system is broken here’. He underlines this sentence with his own experience as a ‘pre-trial detainee’: being detained for months (or was it years?), with neither trial nor access to a lawyer nor contact with anyone beyond these walls—‘and you speak of “the justice system”? There is no justice system here!’

With his voice still reverberating through the corridor, the UN officer and prison guard escort me into a second, smaller building. It is even more chilling than the first. As I enter I am struck by an odour of stagnation, of living bodies slowly rotting—of men struggling to stay alive. When my eyes get accustomed to the dim light I see the condition of the cells, perhaps one-and-a-half meters wide and two-and-a-half meters long. Without space on the floor for each of the cell’s five or six inhabitants to sit and sleep together, the men have set up a system of layered hammocks, three hammocks high, one above the other, the top hammock strung up three or four meters off the ground. The hammocks have been made by hand out of sacking, felt, and other recycled materials. I am told they break every now and again.

Unlike the other building, the walls in this one are covered in drawings. One piece in particular catches my eye as we are leaving. Drawn on the wall of an alcove off the main corridor, it is an exact representation of the Liberian coat of arms, with its image of a ship sailing towards the west African shore carrying the ‘free people of colour of the United States’ who would establish what would become the Republic of Liberia. Hanging over this coat of arms is a slightly larger than usual banner—and here the prisoner’s hand must have lingered a moment, a flicker of a smile must have crossed his face, for a moment, if not a great burst of laughter, shaking the foundations of the Central Prison as he reprinted the line: ‘The love of liberty brought us here’.

Liberian coat of arms (source: commons.wikimedia.org)

Liberian coat of arms (source: commons.wikimedia.org)

Liberia’s first settlements were established in the early 1820s by the American Colonization Society, a philanthropic organisation established with the aim of transporting the free people of colour of the United States to Africa. When Liberia declared itself a Free, Sovereign and Independent State in 1847, it did so as an African-American republic. The Constitution that the Americo-Liberian rulers adopted at independence in 1847 therefore unsurprisingly recalled the US Constitution, including its national legal system and Common Law tradition. At the same time, the vast majority of Liberians—west Africans whose ancestors knew the lands of Liberia long before the republic was an idea, and who were largely excluded from its realisation as a nation-state—were not included as signatories of either the Declaration of Independence or the Constitution of the Republic. Rather, they were systematically excluded, by design and/or effect, from being full legal subjects of Liberia. Thus grounded as a normative matter in less than five percent of the subjects over whom it claimed and exercised jurisdiction, the Americo-Liberian republic failed to maintain within itself the basis of its ongoing existence as a modern institution, leaving its foundations effectively groundless. The result was revolution and the eventual overthrow of the Republic in 1980, with a coup led by the young ‘indigenous’ man, Master Sergeant Samuel Doe. This coup precipitated the civil wars of the 1990s and early 2000s that killed a quarter of a million people, displaced millions more, and destroyed the institutions and infrastructure of the State.

The prisoner’s drawing of the Liberian coat of arms on the prison wall was an act of expression that confronted the institution with this history. The drawing requires us to see this history from the perspective of the prisoner within this institution; but it also requires us to see this institution from the perspective of this history. The effect is to place the institution in history—to make it a matter not only of the ‘here and now’, but also a matter of what has been. The effect is also to draw out the history from the institution—to make the history of Liberia a matter of what is taking place here and now in Liberia’s Central Prison.

This historical-materialist analysis points to a fundamental contradiction. The contradiction is that, as subjects, the men, children, and women who are being detained remain pre-trial, whilst as empirical individuals, their bodies undergo the most intense trial every moment of day and night. As a matter of fact, these women, men, and children have been brought within the prison, as ‘detainees’. Thus in the most physical way they are subject to it, as beings detained; the bodies rotting in the damp pit of its deepest recess testify to that fact. And yet they remain outside as a matter of right, being detained pre-trial not only in the sense that they have yet to see a lawyer, that they are yet to see a judge, that they are yet to see a law, but being detained pre-trial also in the sense that they are yet to be included as a normative matter within the institution that would judge them. Recall the prisoner’s remark, that ‘there is no justice system here’. This recalled the violence of a legal institution that, from the perspective of its subjects, represents an endless deferral of justice.

This also recalls Franz Kafka’s parable of the countryman who is left waiting outside the gate of the law, his access perpetually deferred despite the gate being created for him.[1] Where Kafka’s countryman remains suspended in his own pre-trial limbo before the law, the children, men, and women in Monrovia’s Central Prison have passed through three of its gates only to find themselves in the same position. But it is not the same position; it is much worse: a depersonalised position, in which the bodies of these men, children, and women have been brought forcefully inside the law, made identical with its institution in the most visceral way, whilst their subjectivity remains outside, non-identical in the most violent way. Thus as subjects, they remain pre-trial, whilst as empirical individuals, their bodies undergo the most intense trial every moment of day and night.

Kafka’s parable evokes a terrific mental image of what I argue in the thesis is the contradictory condition of law. But when I entered the cell-blocks of Monrovia’s Central Prison, it smelt like I had entered an epicentre of what Achille Mbembe has called a ‘death-world’—a form of ‘social existence’, created through an expression of sovereignty, ‘in which vast populations are subjected to conditions of life conferring upon them the status of living dead.’[2] When my eyes grew accustomed to the dim light, the sight only reinforced the smell. Describing how ‘necropower’ operates, Mbembe recalls Frantz Fanon’s description of ‘the town belonging to the colonized people’.[3] What I saw fit his description, of ‘a place of ill fame, peopled by men of evil repute’, ‘a world without spaciousness; men live there on top of each other’, ‘starved of bread, of meat, of shoes, of coal, of light’.[4] What I saw was a prison whose inmate population, by legal definition people of ill fame, is kept alive on one meal a day, deprived of exercise in the yard, stacked one on top of the other in their cells. And what I heard was a sound that still reverberates through the prison’s corridors, questioning the justice of the institution that detains these women, men, and children.

Recall the shipping containers that serve as the UN offices in the prison. They too manifest the logic of a necropower that treats humans in an exchangeable manner, in which full-fledged subjects become numerous bodies. Indeed, the impression, in so many senses, is that this logic animates the prison, its institution populated by bodies that give it life as an institution while it denies their subjectivity as human beings. Thus the inmate population is kept alive on one meal a day; strategic plans are implemented to ensure they are not killed by Ebola[5]—whilst justice remains deferred. The result is a twisted answer to Mbembe’s critique of the West’s seeming inability to appreciate that all humans—including Africans—‘have, concretely and typically, the same flesh’.[6] Systematically this critique has been turned around by a logic of exchange that operates on every body in the same way. What Mbembe’s ‘flesh and body’ was supposed to signify—‘the idea of a common human nature, a humanity shared with others’—has been stripped of its humanity, leaving an approach that concretely, and typically, deals in bodies but not subjects.[7]

I am left to consider how this scene is both metaphorical and very real, representing something general—a common experience—and something particular—the singular experience of women, children, and men who are, here and now, being detained in Liberia’s Central Prison. Because of this—because the prison scene also points to something more than a particular problem with this prison, for these individuals, right now—the answer too must lie both inside and outside these prison walls. If so, the problem will not be resolved by fixing Liberia’s Central Prison. Fixing the infrastructure of the legal system, processing the back-log in cases, hauling the bodies of these men, women, and children before a judge: this will not resolve the problem of being detained pre-trial.

Since the declaration that founded the republic of Liberia, the overwhelming majority of Liberia’s ‘country people’ have been pre-trial detainees, included as a factual matter within the bounds of the republic whilst being excluded as a normative matter from its institutions. History has shown, the problem is not just how to strengthen the objective conditions of the legal system, so the bodies of its subjects might access it more easily; but how to respond to the dissonance in its institution, not just in Liberia but as a common experience, whereby law remains separate from the humans who enliven it as its subjects and yet takes place in and through them?

 * This post is the prelude to Shane’s doctoral thesis, ‘Law’s rule – Liberia and the rule of law’.

[1] See Franz Kafka, Before the Law, trans Ian Johnston (Online: http://records.viu.ca/~johnstoi/kafka/beforethelaw.htm, 2015 [1915]).

[2] Achille Mbembe, ‘Necropolitics’, Public Culture, vol 15, no 1 (2003): 40 (italics in original).

[3] Cited in ibid, 26-27.

[4] Ibid.

[5] See the interview with Catherine Marchi-Uhel, Principal Rule of Law Officer, United Nations Mission in Liberia, in which she answers the question, ‘What is UNMIL Rule of Law doing to support the government and people of Liberia in the fight against Ebola?’: www.youtube.com/watch?v=moxxYytokNg.

[6] Achille Mbembe, On the Postcolony (Berkeley: University of California Press, 2001), 2.

[7] Ibid, 2 (italics in original).

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