GUEST COLUMNIST: Olawale Fapohunda
Anti-Corruption, Economic Growth and Security are the triple issues that have dominated governance in the first year of the Buhari administration. Those of us who campaign for reforms in the Justice sector have at every opportunity advised the Presidency that achieving sustainable results in these key intervention areas requires fundamental review of our administration of justice system.
On Anti-Corruption, we have said that an effective and efficient EFCC, ICPC, CCB need an independent, effective, efficient and well-endowed Judiciary and Prosecutorial System. I know that many Nigerians will rather we by-pass the courts and take persons accused of corruption straight from their houses to prison, but we are a country whose existence is based on the rule of law, constitutionalism and respect for human rights including protecting the rights of those accused to have stolen public funds. ‘Innocent until proven guilty’ is one of the most important cornerstones of our criminal justice system.
On Economic Growth, we have said and loudly too, that for Nigeria to be truly open for business we have to pay attention to removing legal and regulatory obstacles to doing business in Nigeria. Sustainable economic growth must also include a holistic review and simplification of investment law and processes as well as achieving integrity and speed in the commercial dispute resolution system.
On Security, we have been vocal in our assertion that the nature of the security challenges currently facing Nigeria requires a criminal justice approach.
It should be obvious to all discerning Nigerians now that the Nigerian Military, even in the face of the renewed professionalism that has resulted in stunning victories over Boko Haram, cannot on its own solve all the security problems in Nigeria. Whether we admit it or not, or whether the dictates of ‘obey the last command’ will allow the military hierarchy to admit it, our military is over stretched. Fighting Boko Haram in the North East, supporting law enforcement agencies in facing down MASSOB in the East, responding to the security challenges posed by armed herdsmen, providing back up to law enforcement in responding to armed robbers and kidnappers across Nigeria and recently battling the Niger delta avengers in the Niger delta creeks, the hands of our military are full. It therefore seems simplistic that we strengthen our law enforcement agencies.
The need to focus on prevention and strengthening the criminal justice response to all forms of criminality including terrorism has become an increasing priority. This presupposes an urgent need to revisit those institutions that support our criminal justice system. An important institution in this regard is our Judiciary. The Judiciary has come under close scrutiny in the last few months largely due to corruption cases and election petitions. It is often difficult to explain to the average Nigerian that our courts are not all about corruption matters and settling election disputes. On a daily basis tens of judgments are given in diverse areas that affect our lives. We need to recognise that our Judiciary faces certain inherent problems, which show the weaknesses and defects of the system. These require immediate reforms. Some of these challenges include corruption, a backlog of pending cases in all our courts, archaic systems and procedures including writing in long hand and limited use of IT, poor infrastructure and limited recognition of lower courts. Fundamentally, the three arms of government need to agree on the funding situation of our Judiciary.
The other important criminal justice institution is the Nigeria Police Force. There have been more than 14 years of debate on policing and reform in Nigeria facilitated by at least ten high level committees on police reforms. The findings and reports from these initiatives have largely gone unimplemented. In the past twelve months the Inspector-General of Police (IGP) embarked on a wide range of reforms aimed at reversing the poor image of the Nigeria Police Force. These reform measures include facilitating the drafting of a progressive Nigeria Police Services Bill to replace the outdated Police Act 1968. The IGP has also reviewed the police public complaints in response to the considerable unhappiness with the system of inquiring into public complaints about police misconduct. There is now in place a citizens complaints system, which aims to work openly, quickly, effectively, impartially and is invested with resources and authority to guarantee independent and fair investigations into public complaints against police. There are consequences for police misconduct including personal liability for cases of ‘accidental discharge’. These interventions have by no means solved all the problems with the police and policing in Nigeria but if sustained they provide important steps towards achieving a police service that is accountable and responsive to our needs.
Advocacy for a criminal justice approach to security will not be sustainable without a holistic review of prisons. Our prisons continue to be a source of concern due to overcrowding, under staffing, inadequate and inappropriate conditions for female and juvenile detainees, poor administration, long detention of those awaiting trial and limited access to legal advice and representation. There are a number of ongoing challenges affecting the ability of the Nigerian Prisons Service to achieve its mandate. The first is its archaic legislation. Not unlike the Nigeria Police Force, the Prisons Act was last reviewed in 1972. A Bill to amend the Prisons Act 1972 was first laid before the House of Representatives in 2001. In 2016 the process of amendment is still on going.
The second known issue is the condition of incarceration of inmates. The majority of persons in prisons are remand prisoners. The total prison population (as at the last week in March 2016) was 61, 527 broken down as follows: Male 60,567, Female 906. Total number of convicts 17,663. 43,864 are persons awaiting trial. The rate of overcrowding in Nigerian prisons in general is 70%, however there are specific prisons with overcrowding rates of 90%. The inability of the courts to process persons charged with criminal offences quickly has led to the congestion of this population in our prisons.
The main reason for the inability of the courts to process offenders quickly is the limited transportation infrastructure of the Prisons Service. The total number of vehicles available for the Prisons Service to transport offenders to courts nationwide is two hundred and sixty eight (268). The Prisons Service is required to cover seven hundred and seventy-four (774) Local Governments areas, with five thousand and twenty two (5,022) courts across the thirty-six States of the Federation and the FCT. Kuje Prison, services ninety-five courts within and around the FCT with three prison vans.
Any discussion about prison reform without a fundamental review of the conditions of service for prison officers will not be sustainable. The conditions of service under which the prison staff work are grossly inadequate. The pay is poor and cannot match the dangers, emotional stress and social isolation to which prison officers are exposed. It is obvious that inadequately motivated staff cannot find satisfaction in their jobs neither can they be expected to perform optimally. The Nigerian Prisons Service has for long been supervised by the Ministry of Interior (formerly Internal Affairs).
The Ministry of Interior jointly supervises the Nigeria Police Force and other paramilitary services like the Fire Service, the Immigration Service and the Civil Defence Corps. The duties of the Prisons Service are fundamentally different from that of the Fire Service, Immigration and Civil Defence Corps. A situation where they are treated in the same way and administered by one administrative body will continue to militate against the efficiency and effectiveness of the Prisons Service.
The criminal justice approach that is proposed requires that access to justice institutions function efficiently and effectively. The most visible institution in this regard is the Federal Ministry of Justice. The mandate of the Federal Ministry of Justice is two-fold. It administers justice in Nigeria and it oversees state legal affairs. An important role of the Federal Ministry of Justice is the prosecution of serious crimes.
The Federal Government recently inaugurated a panel of experts to oversee the prosecution of high profile corruption and criminal cases. It is possibly too early to speak about the desirability of this initiative. However with profound respect to the Federal Government, it seems to me that what Nigeria needs today is an institutionalized, not ad hoc, Nigerian Prosecution Service as the principal prosecuting authority for Nigeria, acting independently in criminal cases investigated by the police and others. It must be a source of concern to the Federal Government that the successes achieved by the Nigerian Military in its fight against Boko Haram has not been matched by the effective prosecution of arrested insurgents.
Any discussion about the state of the justice sector in the last 12 months of the Buhari administration will be inadequate without a discussion of the state of human rights in Nigeria. The Federal Government has supported the development of a National Action plan for the promotion and protection of human rights. This is no doubt an important step in identifying and prioritising concrete legal, policy and administrative options for the realisation of the rights of Nigerians. The challenge over the next 12 months is translating this statement of commitment into tangible realities for all Nigerians irrespective of economic status, gender or any other attribute.
The first 365 days of the Buhari administration has undoubtedly not met the expectations of many of us who thought that this was one sector that would progress rapidly. The Presidency should do more over the next 365 days. There are a number of quick wins worth considering. These include publishing the administrations vision, policy statement and action plan for the justice sector in Nigeria. Issues of security and administration of justice cannot be undertaken on an adhoc basis. The Presidency should support the enactment of the Nigeria Police Services Bill and the Prisons Bill. Consideration should be given to the removal of the Prisons Service from the oversight of the Ministry of Interior and place it in the Ministry of Justice. The failure to pay attention to prisons is no longer simply an issue of law, justice and human rights but one of national security.
In conclusion, we cannot make progress in the justice sector without fora that brings together the three arms of government and representatives of non-government institutions. President Buhari should support the establishment of a National Council on the Administration of Justice (NCAJ) with representation from the three arms of government and civil society to provide high-level policymaking, implementation and oversight of interventions in the Justice Sector.
Olawale Fapohunda is a former Attorney-General of Ekiti State and Managing Partner, Legal Resources Consortium