2017: Administration of Justice Reform, Policy Options for Buhari Government

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The overall objective of justice sector reform is to build a justice system which is affordable, efficient, independent, transparent, professional and accountable to Nigerians, Olawale Fapohunda and Onikepo Braithwaite review the current state of key institutions in the justice system and suggest various legislative and administrative interventions available for the consideration of the Buhari administration

The Buhari administration has severally stated its desire to reform the administration of justice system in Nigeria. In particular, the Judiciary, Police Force, Prisons Service and Access to Justice institutions, have at various times, been the subject of statements of commitment to reform by the Presidency and responsible government Ministries and departments.

A combination of limited political will, including government’s inability to articulate what needs to be done, the lack of merit based appointments to leadership positions of key justice sector institutions, and the appointment of persons without subject- matter appreciation or passion for reform, have proved important stumbling blocks towards achieving reforms in this sector.

The Judiciary

Having a system of independent courts and tribunals that administer justice efficiently is one of the cornerstones of Nigeria’s democracy. Finding the balance between judicial independence on one hand, and public accountability on the other, is a critical challenge. Like with the other two arms of government, the judiciary faces certain inherent problems, which show the weaknesses and defects of the system. These require immediate reforms.

Corruption is just one of these challenges. Judicial corruption is not simply about judges taking bribes; it includes all forms of inappropriate influence that may damage the impartiality of justice. Other challenges include the backlog of pending cases in all our courts and the use archaic systems. The issues of poor infrastructure affecting all courts, particularly the lower courts, defective judicial appointments and the tragic inability of most of the state governments to support judicial financial autonomy are known obstacles. Fighting judicial corruption is a good idea, but a judiciary that takes it bearings from the executive and is compelled to frequently go cap in hand to the executive for funding, even the for the most basic of its needs, cannot by any stretch of imagination inspire citizens confidence.

Proposals for Reform

Immediate Confirmation of Honourable Justice Walter Onnoghen as the Chief Justice of Nigeria

The year 2016 was a remarkable one in the life of the Judiciary. The arrest and prosecution of some judges was the biggest news in the past year. The year also saw the retirement of Honourable Chief Justice of Nigeria, Mahmud Mohammed and the appointment of Honourable Justice Walter Onnoghen JSC as the Chief Justice of Nigeria in an acting capacity. He is yet to be confirmed.

Mr. President should immediately take steps to achieve the confirmation of the Acting Chief Justice and thereupon, facilitate a result-oriented discussion with the Judiciary, the National Assembly and other Justice Sector Stakeholders on the following matters:

• Proposals for a Constitutional amendment that seeks to review the composition of the National Judicial Council, including separating the office of the Chief Justice of Nigeria from that of the Chairman, National Judicial Council.

• Modalities for the establishment of a High Level Judicial Panel to review all cases of corruption in the Federal and State Judiciaries, for the purposes of presenting findings to the National Judicial Council (Pending amendment of the Constitution).

• Meeting with Governors of the 36 States of the Federation on funding the judiciary, including establishing an independent Judicial Benefits and Compensation Commission appointed by the President in consultation with State Governors, to undertake a comprehensive review of salaries, allowances and benefits of all Judicial Officers in Nigeria, including lower court judges. The Commission should be required to submit a report with its recommendations to the National Council of States for deliberation and possible implementation.

Nigerian Police Force and Police Reform

In 2016, there was a change in the leadership of the Nigerian Police, Solomon Arase retired and Ibrahim Idris was subsequently appointed Inspector-General of Police. Arase is widely credited for embarking on a wide range of reforms aimed at reversing the negative perception of the police, and transforming the Nigeria Police into a true public servant capable of elevating the sense of security of Nigerians.

These reform measures include facilitating the enactment of a progressive Nigeria Police Services Bill to replace the outdated Police Act. Also in response to the considerable unhappiness with the system of inquiring into Public complaints against the police, Arase reviewed the police complaints handling process.

These interventions have by no means solved all the problems with the police and policing in Nigeria, and the immediate concern is that the present IGP has left no one in doubt that he may be unwilling to continue with any programme remotely connected to Arase.

Proposals for Reform

Support Legal and Constitutional Reform

The reform of the Nigeria Police Force (NPF) will require a wide range of reforms, including organisational restructuring aimed at making the police operationally neutral, institutionally accountable, and service-oriented.

In addition to directing the IGP to get on with the task of policing Nigeria, and stop complaining about missing cars in the garage of the Police Force, the Buhari Administration should embark on the following reform measures:

• Support the repeal of the Police Act and propose Constitutional amendment aimed at facilitating respect for human rights, gender equality, pro-poor policing and enhancement of community policing. Further, the police law reform process should emphasise accountability, including vesting the operational control of the police in the hands of the Inspector-General of Police (IGP) rather than the President. In addition, provision should be made for the appointment of the IGP through a transparent, meritocratic and competitive process with a fixed tenure of office

• Appoint an independent police ombudsman, with strong authority to receive complaints from the public on matters of police corruption, including delay in investigation of crimes, abuse of power and extra-judicial killings.

• Commence the Implementation of existing recommendations for the review of the conditions of service of the Nigerian Police, including an audit of the physical state of all police stations and training institutions in Nigeria.

• Review the mode of appointment of Chairperson and members of the police service commission. Stop the practice of appointing retired police chiefs as chairperson of Police Service Commission.

• Facilitate a national dialogue on the desirability of state police with a view to commencing pilot projects in some states.

Nigerian Prisons Service and Prisons Reform

In 2016, the wind of change appears to have blown away from the Nigerian prisons. The only event of note in the Prisons Service was the appointment of a new Controller-General of Prisons, and even that was not without controversy. Our prisons continue to be a source of concern due to overcrowding, under staffing, inadequate and inappropriate conditions for prisoners and prison officers alike, poor administration, long detention of those awaiting trial and limited access to legal advice and representation.

The period under review witnessed three jailbreaks and an attempted one. Abuja, Nsukka, Kotonkafe and Abakaliki prisons all had episodes of prisoners unrest. The immediate problem facing the prison system is overcrowding, at least in prisons located in the cities. Many prisons are now operating at more than 150% of capacity. This has resulted in intolerable conditions. Concerns about poor sanitary conditions and feeding are rife; four in five prisoners in some prisons inspected last year by the National Human Rights Commission said they spent at least 23 hours a day locked-up in their cells. We cannot reform prisons with this level of Overcrowding.

A few examples may be worth noting. Port Harcourt Prisons, in Rivers State has a capacity of 804, today it holds more than 3,593 prisoners, Agodi Prisons in Ibadan, Oyo State has a capacity of 294, it now holds over 1000 inmates, Owerri Prisons in Imo State has a capacity of 548, it now holds just over 2,144 prisoners, Kano Central Prisons has a capacity of 690, there are now over 1,609 in that prison, in Lagos State, Ikoyi Prisons has a capacity of 800, it now struggles with more than 2,239 inmates.

It is worth repeating for emphasis, that keeping thousands of persons in our prisons without trial is not simply a law, justice and human rights issue or about costs. It is one of national security. The evidence of this can be seen first hand in the on-going struggle of our security agencies including the Nigerian Military to find secure prison facilities for arrested insurgents, who constitute a clear and on-going threat to the peace and stability of Nigeria

Proposals for Reform

Legal and Institutional Reform

The Minister for Interior has publicly expressed confidence that the 2017 appropriation for the Prisons Service will begin to solve many of the problems facing the Nigerian Prisons service, including the limited transportation infrastructure which is largely responsible for the inability of the courts to process offenders quickly.

The Buhari administration should consider the following additional measures:

• Support a review of the Prisons Act Amendment Bill in the Senate. Not unlike the Nigeria Police, 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. It is simply inexplicable that the process of amendment is still on going in 2017.

• Remove the Prisons Service from the oversight of the Ministry of Interior and place it in the Ministry of Justice. 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, Prisons Service and other paramilitary services, like the fire service, the immigration service and the civil defence corps. The duties of the Prison Services are fundamentally different from that of the fire service, immigration and civil defence Corps. Therefore, 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.

• Establish a Prisons Service Commission to take over the functions of the Immigration, Prisons Service and Civil Defence Board as it relates to the administration of the prisons and conditions of service of prison officers.

• Appoint a Chief Visitor of Prisons to conduct inspections of all prison facilities in Nigeria on a regular basis, respond to complaints by prisons officers and prisoners, investigate deaths in custody and publish independent regular findings of his/her work, and make appropriate recommendations for action to the President and National Assembly.

• In collaboration with the state governments, undertake an audit of all prison facilities in Nigeria with a view to identifying persons who should not be in prison.

• Appoint the Controller-General of Prisons as a member of the National Security Council.

• Review existing reports on Prisons reforms in Nigeria with a view to identifying priority intervention.

• Facilitate a national dialogue on the desirability of state prisons leading to possible constitutional amendment.

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.

The Buhari administration has placed a high value on delivering quality services to the public and has set out minimum conditions for public service. These include efficiency, effectiveness and responsiveness to peoples needs. Many of the existing systems and process, prevent the Justice Ministry from being effective and efficient.

The Ministry still largely sees itself as responsible for the administration of the Ministry of Justice and not the Justice Sector. The Federal Justice Sector Coordinating Committee that was set up to facilitate coordination between Federal and state justice institutions, has had limited impact because of lack of support. The result of this, is the absence of a national consensus on important justice sector issues.

An important development in 2016 was the inauguration of a panel of lawyers for the prosecution of high profile corruption and criminal cases. It is possibly too early, to speak about the desirability of this initiative. However, one would have thought the funding for that panel would have gone to the strengthening of the Office of the Director, Public Prosecutions in the Ministry. This is more so, given the continuing agitation of state counsel in the Ministry, for better conditions of service. It would seem obvious that what Nigeria needs today is an institutionalised, and 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.

Proposals for Reform

The Buhari Administration may want to rethink its decision to establish the National Prosecution Panel and consider whether the panel could potentially weaken the office of the Director, Public Prosecution. It should be the desire of the administration to bequeath an effective and efficient prosecution service within the Ministry of Justice.

In addition the administration should:

• Appoint the Attorney-General & Minister of Justice of the Federation as the coordinating Minister of the Justice Sector.

• Improve the conditions of service of State Counsel in the Federal Ministry of Justice (Implement the harmonisation policy)

• Strengthen and refocus the Federal Justice Sector Coordinating Committee

Corruption in the Administration of Justice

The prevention and combating of corruption in the justice system is a priority objective of reforms in the justice sector. In the broader context of the national fight against corruption, this is fundamental, until corruption within the justice sector is severely controlled or eradicated, most legal and programmatic mechanisms put forth to reduce corruption in other sectors of society, will be significantly undermined. Investigating and prosecuting corruption across government and private sectors in Nigeria, requires an efficient justice system.

As stated previously, prosecuting judicial corruption is an important step towards eradicating corruption in the justice system, but it is difficult to imagine how this alone will ensure integrity in the judicial process. Corruption trials are not removed from the challenges facing the criminal justice system.

Across the justice sector, there is a culture that attaches no stigma to inefficiency and corruption. The lukewarm enforcement of an efficient and credible performance appraisal system linked with an adequate and transparent reward and punishment mechanism is an important concern. A punishment- and rewards-based system is critical to minimising corruption.

Strong accountability mechanisms and attractive compensation policies, are essential elements of a corruption-free system.

There is a need for an efficient system of Public Finance Management, that ensures that the funds budgeted across the sector and released, are utilised for the intended purposes and that sufficient transparency allows for public verification. High standards of financial stewardship should be the norm throughout all levels of the justice system thereby reducing the opportunities and incentives for corrupt behaviour.

The non-investigation of allegations of graft in the appointments and promotions of public officers in the sector, and that of pervasiveness of forged birth and education certificates, have been an obstacle towards achieving professionalism and efficiency across the sector.

Proposals for Reform

The Buhari administration should give serious consideration to:

• Enforcing merit-based employments and appointments across the institutions in the justice sector and create appropriate legal and institutional framework to increase job security and stability.

• Undertake an independent assessment of corruption involving all stakeholders in the justice sector. Evidence of corruption, and not just suspicions or popular belief, is required in order to effectively assess corruption and develop a framework of anti-corruption policies.

• Enhancing working conditions across the justice sector, to eliminate the necessity to supplement their paltry income with bribes.

Funding the Justice Sector

Inadequate funding is one of the key concerns of the justice sector.

Precise figures are unavailable because of the gap between what is appropriated and what actually gets to the Institutions. A combination of limited political will and the low priority placed on the sector has combined to leave the sector in dire straits. Added to this, is the situation of Nigeria’s economy, which now requires all institutions to make difficult decisions in all areas of public expenditure.

Proposals for Reform

The Buhari administration should

• Undertake a survey of budgetary appropriation to the Justice Sector, to determine adequacy and identify gaps.

• Undertake a review of development assistance to the justice sector, to determine content and relevance.

• Establish a joint ministerial committee to consider the needs of the justice sector in a holistic manner, make proposals for financial assistance and coordinate project design.

The proposals suggested are not new. Many of them are contained in the recommendations of the several Presidential Committees established since 1999 to review the state of administration of justice in Nigeria, including the proposal for the establishment of a National Council on the Administration of Justice to provide high- level policy making, implementation and oversight of interventions in the Justice Sector The stumbling block has always been the inability of successive governments to prioritise the justice sector. The Buhari administration should reverse that narrative. Nigeria, more than ever, needs a justice system that works in the interest of Nigerians.

Olawale Fapohunda, Managing Partner, Legal Resources Consortium & Former Attorney-General, Ekiti State and Onikepo Braithwaite