Nigeria: A Reformatory Approach To The Criminal Justice System In Nigeria.

Last Updated: 18 February 2014
Article by B Ayorinde & Co

INTRODUCTION:

The importance of criminal justice to the smooth running of any society cannot be over emphasized. Indeed an effective criminal justice system is regarded by many as fundamental to the maintenance of law and order. However the Nigerian criminal justice system is not only dysfunctional it is also outdated and absolutely not fit for purpose. This much was highlighted by Professor Yemi Osibajo (SAN) when addressing the charges of the criminal justice system in Nigeria by asserting that "...many of the provisions are outdated and in some cases anachronistic. Besides, the loopholes in the law and procedure have become so obvious that lawyers especially defense lawyers have become masters in dilatory tactics. It has thus become increasingly difficult to reach closure of any kind in many criminal cases. Convictions and acquittals have become exceedingly rare". While the foregoing assertion is quite instructive, It is pertinent to note that these views are widely held among many legal practitioners and eminent jurist, who have also called for fundamental reform to the Nigerian criminal justice system.

'An effective criminal justice system is fundamental to the maintenance of law and order. Criminal justice, because it addresses behavioral issues, must be dynamic and proactive. ... Consequently, many of the provisions are outdated and in some cases anachronistic. Besides, the loopholes in the laws and procedure have become so obvious that lawyers especially defense lawyers have become masters in dilatory tactics. It has thus, become increasingly difficult to reach closure of any kind in many criminal cases. Convictions or acquittals have become exceedingly rare'.

Professor Yemi Osinbajo, SAN [Former Attorney General of Lagos State]

If an element person can show such a comment on the Nigeria Justice system, it shows the lacuna/rot in the system and reasons for an urgent reform.

'Criminal Justice System can be defined as the collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The system typically has three components: law enforcement which includes; police, sheriffs, marshals], the judicial process [judges, prosecutors, defense lawyers], and corrections [prison officials, probation officers, parole officers]'

Black's Law Dictionary, 7th Edition

Nigerian criminal Justice is given its legal foundation through the constitution, most especially the portion of the constitution which relates to the powers of the court, or jurisdictional mandate of the courts. Sections of the constitution such as fundamental human rights particularly the provisions on right to liberty, right to fair hearing which deals with criminal justice. The state, in using its power to convict a person who has committed a crime must at the same time comply or respect the constitutional provisions on human rights.

Apart from the constitutional provisions, the Nigerian legal system is divided into sub-systems which comprises of various laws in force both at the federal and state levels. There is no uniformity of laws governing criminal law and procedure in the country although the criminal justice system in all the states of the federation are similar with some difference in the law applicable in the Northern and the Southern states. In respect to substantive law the Criminal Code Act applies in the Southern states and the Penal Code Act applies in the Northern States. In procedural matters the law applicable in the Southern states is the Criminal Procedure Act, whilst the Criminal Procedure Code applies in the Northern States. Despite these differences there is almost nothing to distinguish the states in terms of development and challenges. Indeed it is not out of place to discuss the criminal justice system as one single unitary system rather than an aggregate of state systems within a federation.

Various institutions are involved in the administration of justice in Nigeria, they include the judiciary, police, the prison service and legal practitioners. Criminal justice is of different stages which commences from when the police has a reasonable suspicion that a person has either committed a crime or is committing a crime, then an arrest will occur, then filling of criminal charges and the bail hearing, through to trial; continues in the case of conviction, through sentencing, imprisonment and release upon completion of sentence.

According to the United Nations Office on Drugs and Crime report, it was stated that Nigerian criminal justice system has recorded significant improvements in all aspects of justice delivery resulting in an increase of public confidence in the justice system. E.g. court users who indicated that they would use the courts again based on their experience, increased from 58% in 2002 to 69% in 2007. However, despite this progress, data also shows that serious reform is still required  in the system for a better criminal justice as the percentage of prisoners awaiting trial in remand remains high, adjournments unnecessarily prolong disputes, political interference with judicial appointments and judicial decision-making remain an issue, both in the eyes of judicial officers and the bar, coordination among the various justice sector institutions poses continuous challenges, and while the judiciary was able to significantly reduce the vulnerability of courts to corrupt practices, the problem is not to be considered under control. The implication of the foregoing is that there is need for fundamental reform in the Nigerian criminal justice system.

This paper intends to focus on the main areas that continues to require attention the criminal justice system and on the possible reforms in those areas.

AREA OF REFORM.

Overcrowding in prisons and other detention centers:

According to records, the Prison Service in Nigeria has over 144 prisons and an estimated 83 satellite prisons. The prison capacity is at about 42,000 detainees, slightly above the (about) 40,000 registered prisoners. One endemic problem is that of overcrowding, particularly in urban prisons, which results from high percentage of inmates awaiting trial.

Due to overpopulation of the prison, the Prison Service Commission is faced with loads of challenges which include; poor infrastructure in most prisons, inadequate data due to inadequate record keeping and file management preventing the development of sound policies based on accurate information. Prison conditions are poor, especially for pre-trial prisoners. Hygiene and sanitation in most prisons are impacting on the health of prisoners. Medical services are inadequate, the spread of HIV/AID and tuberculosis (TB) pose a serious challenge, though steps are being taken to address these challenges. Vocational training and educational facilities are inadequate. There is a shortage of welfare and aftercare staff, instructors and trainers, and rehabilitation and aftercare services are limited.

The problem of prison congestion in Nigeria is one of the agonizing issues that have continued to confront the nation's criminal justice system, creating the call for an urgent reform of the Nigerian prison service which remained the foremost institution in the country. Prison congestion is linked to the steady rise in the figure of awaiting trial persons who are said to constitute over 70% of the estimates 54,156 prisoner's population in the 235 prisons across the country. Out of the estimated figures, 15,593 are convicted males, 211 are convicted females while 38,352 are awaiting trial, majority of whom have exceeded the term of imprisonment for which they are accused. The negative effect of prison conjection has led to several incidents of jail breaks in many parts of the country with the attendant security risk as both convicted and detained prisoners often disappear without a trace. Example of this happened recently in Kaduna prison where some inmates escaped. According to the report, an estimate of 797 prisoners were said to have escaped the prison out of which 539 inmates were awaiting trial and 139 of them were awaiting execution on death row. Another example of prison congestion is that of Awka prison with a building capacity for 238 inmates but has 509 inmates. Out of the 509 inmates, only 28 are convicts while 481 inmates are Awaiting Trial Inmates; also 0nitsha prison also has a total of 847 inmates as against its capacity for 326 inmates. Out of the 847 inmates, 41 have been convicted while 735 inmates are also awaiting trial inmates.

The Nigerian Constitution provides that a person arrested on suspicion of committing a crime is presumed innocent until otherwise proven by a competent cout of law. They have the right to counsel, are privileged against self-incrimination, and should appear before a magistrate or other judicial official within a reasonable time or be released from custody two to three months from the date of arrest. Holding a person awaiting trial beyond the legally allowed time, or even longer than he or she would have spent had they been sentenced for the offence they have been detained or charged is an infringement of their fundamental human rights which is guaranteed under section 35 of the 1999 constitution [as amended].

Reform in line of its prison congestion needs to start not at the end of the criminal justice process, but at the beginning. We cannot reduce the ever escalating pretrial population unless we reduce the flow of detainees into the system; that requires proper safeguards for arrest and pretrial detention in police custody. This can be achieved by focusing on the following development;

The right to counsel:  Research shows that early contact with a lawyer reduces the chances of detainees being tortured or even summarily executed by the police. For many pretrial detainees, access to counsel is an unrealistic dream. They are often too poor to afford the services of a lawyer; the institution primarily responsible for filing this gap—Legal Aid Council of Nigeria—is as under-staffed as it is underfunded. Any serious reform effort must prioritize provision of legal assistance for criminal suspects within the first 48 hours of arrest
Accountability: In a sense, the bill now under consideration aims to introduce an element of accountability by encouraging prison comptrollers to regularly report on the number of detainees in the prisons to the chief justice of Nigeria and his state-level counterparts. But again, more is needed. The federal and state attorneys-general are also to be included in this report so they take appropriate action when required because they are chief law officers of the state they all represent.
Beyond this, accountability is vital to ensure that justice is being served. Pretrial injustice occurs when police officers arrest without cause, but are never required to explain themselves; when lawyers pervert the course of justice, but face no disciplinary measures; or when magistrates allow pretrial suspects to languish in prolonged detention, but never face censure.

PROBLEM OF DELAY IN DEISPENSATIO OF CRIMINAL JUSTICE:

Delay in dispensation of justice in Nigeria remains the most disturbing and major challenging aspect of criminal justice. In the country, criminal trials are often delayed most especially where the person standing trial/defendant are able to engage the services of legal practitioners who could help in exploiting the weaknesses in the system as a result cause delays or frustrate the trial. The people who benefit mostly from the deficit in this area of criminal system are mainly the politicians and political office holders when they are to stand trial for corruption and abuse of offices. Many of them can afford to employ the services of lawyers who often drag trial to the point that conviction becomes unlikely as witnesses may no longer be available or where the witness is available some facts relating to the case would have been distorted, or during which the defendant gain immunity due to a political post or wining of election while trial was pending. The country is thus confronted with the unfortunate situation in which the criminal justice system has lost its capacity to conclude criminal trials involving the wealthy and politically exposed persons. Meanwhile, the population of prisoners, mostly poor people who are held without trial is growing

In order for this defect to be cured, provision for speedy trial, restriction on number and interval of adjournments and electronic recording of trials to reduce the problem associated with trial de novo of part heard matters should be introduced for better and functional criminal justice system.

Justice should be made available to the accused, the society and to the victim. Presently, the criminal justice systems in Nigeria dooes not recognize the right of the victim. For a criminal justice to be effective, victim of criminal acts should be placed in high esteem and should always be catered for.

The persistent issue of the holding charge: where the police charge suspects to courts that are not statutorily empowered to handle their case.

The reform of archaic criminal procedures/laws: Nigerian criminal dispensation is an integral part of the wholesome received English law. The English law which we copied has been reviewed severally to meet the ever expanding challenges of the modern time, while our own criminal justice laws remain the same with no recent review for it to fit to the present situation of the country. The two principal codes which governs the criminal prosecution in the country are the criminal procedure code[applicable in the northern part of Nigeria and Federal Capital Territory] and the criminal procedure act [applicable in the Southern States]. These codes did not make clear provisions on the issue of venue of trials, timelines for role players to perform their statutory functions, sentencing guidelines, alternatives to imprisonments, holden charges etc which all serves as an avenues for delays of trials and detention without trials.

Out dated sentencing procedures

lack of access to legal representation

Lack of properly trained prosecutors

Decongestion of courts: the starting point of the modernization of the criminal justice system and reducing the congestion of this court is by providing a well-articulated policy that is geared towards reduction of caseload per judge and increasing the disposal rate of cases. It can also be achieved by creation of specialized criminal courts, introduction of plea-bargaining, appointment of more judges, case management and tracking system etc

Inadequate funding.

CONCLUSION

The list of areas of reform in the criminal justice system is in no way exhaustive. There are still many more problems that are not enumerated. What is however certain is that the general consequence of these problems has been a non-performing criminal justice system leading to a denial of justice either to the defendant or the victim. However, many of the persons caught up in the criminal justice system are usually the poor and less privileged. Thus it is imperative that in discussing reform and modernization one must ensure that any suggestions must have a pro poor content. With the level of explosion and the way the country has developed in recent time, our experience in Nigeria has shown us that criminal justice reform is not something to be taken for granted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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