A REFORMATORY APPROACH TO THE CRIMINAL JUSTICE SYSTEM IN NIGERIA

INTRODUCTION:

The importance of criminal justice to the smooth running of any society cannot be overemphasized. 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However, the Nigerian criminal justice system is not only dysfunctional it is also outdated and absolutely not fit for purpose.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 Osinbajo (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when addressing the charges of the criminal justice system in Nigeria by asserting that “…many of the provisions are outdated and in some cases anachronistic.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 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 behavioural issues, must be dynamic and proactive…” Professor Yemi Osinbajo, SAN [Former Attorney General of Lagos State] This comment on the Nigeria Justice system clearly shows the rot in the system and reasons for an urgent reform.

Black’s Law Dictionary, 7th Edition gives a comprehensive definition of the Criminal justice system and the components within the system which include law enforcement, the judicial process and corrections.

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. 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 comprise 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 is 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 including the judiciary, police, the prison service and legal practitioners. Criminal justice is of different stages which commence from when the police have 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.

A United Nations Office on Drugs and Crime report stated that the 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, political interference with judicial appointments and judicial decision-making remain an issue 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 a need for fundamental reform in the Nigerian criminal justice system.
This paper intends to focus on the main areas that continue to require attention to the criminal justice system and on the possible reforms in those areas.

AREAS OF REFORM.

1. Overcrowding in prisons and other detention centres:
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 a high percentage of inmates awaiting trial.

Due to overpopulation of the prison, the Prison Service Commission is faced with challenges which include; poor infrastructure, inadequate data due to inadequate record-keeping, etc. 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 which poses the challenge of the spread of HIV/AID and tuberculosis (TB).

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, the majority of whom have exceeded the term of imprisonment for which they are accused.

The negative effect of prison congestion has led to several incidents of jailbreaks 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 was said to have escaped the prison out of which 539 inmates were awaiting trial and 139 of them were awaiting execution on death row.

The Nigerian Constitution provides that a person arrested on suspicion of committing a crime is presumed innocent until otherwise proven by a competent court 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 filling this gap—Legal Aid Council of Nigeria—is as under-staffed as it is underfunded. Any serious reform effort must prioritize the 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.

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:

In Nigeria, criminal trials are often delayed most especially where the person standing trial/defendant is able to engage the services of legal practitioners who helps in exploiting the weaknesses in the system to delay justice.

The people who benefit most 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 an election while the 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 a 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 the better and functional criminal justice system.

 Presently, the criminal justice systems in Nigeria does not recognize the right of the victim. For a criminal justice to be effective, a 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.

Other necessary reforms should be made in the following areas; Outdated sentencing procedures, lack of access to legal representation, lack of properly trained prosecutors, decongestion of courts, 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.

BY:        CHIEF BOLAJI AYORINDE SAN, FCArb, O.F.R.