Nigeria’s Bold Legislative Agenda for Pretrial Justice Reform

In a recent interview, Francis Enobore, Public Relations Officer at Nigeria’s Prisons Service, confirmed what many already know: 71 percent of the nation’s 57,000 prisoners are awaiting trial at an uncertain future date.

But this is not the full picture. Besides the prisons, there are other public institutions that hold criminal suspects pending trial. Regrettably, most of these institutions do not disclose statistics about their holding capacities or their detainee populations. Clearly, we have more pretrial detainees in holding centres across the country than is known to the public.

Different factors contribute to the high pretrial population: poor investigative capacities within the police force; criminal laws that allow magistrates to remand pretrial detainees for unduly long periods; delays in preparing and transmitting legal advice from public prosecutions departments; inadequate legal aid and more. While it is important to address all these issues, it seems quite obvious that any sustainable progress will require revising defective remand laws which have contributed to a system which often fails to respect the rights of suspects, and leaves them without recourse to proper administrative or judicial review . Several attempts have been made in the past to reform a few of these remand laws. At the time of writing, about three states—Anambra (South East), Ekiti (South West) and Lagos (South West)—have remand laws that embed this accountability principle. Although this is significant given that Lagos alone has about 40 per cent of the total pretrial population in the country, it is however not enough. The outstanding 33 states and the federal capital, Abuja need follow the example of these progressive states. Luckily, the outgone administration of President Goodluck Jonathan took advantage of its final weeks in office to approve the Administration of Criminal Justice (ACJ) Act, 2015.

Described by many experts as one of the most progressive pieces of legislation in the field of criminal justice, the ACJ Act covers the whole remit of the criminal process from arrest through bail, trial, conviction and sentencing, costs, compensation, damages and restitution as well as appeals. The law sets out very ambitious objectives: efficient management of criminal justice institutions; speedy dispensation of justice; protection of the society from crime; and protection of the rights and interests of the suspect, defendant and victim. It applies to offences established by an Act of the federal assembly and offences punishable in Abuja. Nonetheless, every one of the 33 states with less progressive criminal laws can and should adopt and adapt this law to suit their peculiar circumstances.

In relation to pretrial detention, the ACJ Act makes interesting provisions. At the point of arrest, it requires arresting police officer or individual to inform suspect of his/her right to presumption of innocence, right to consult a lawyer of choice and right to free legal representation by the Legal Aid Council of Nigeria (section 6(2)). This provision merely echoes constitutional guarantees for the right to fair hearing. The challenge actually lies in getting the relevant institutions to prioritize implementation and effective oversight.

One of the most commonly violated right of a suspect is the privilege against self-incrimination. In many cases, suspects are coerced or compelled to make statements under duress. The ACJ Act attempts to correct this by requiring that any such statement be taken “in the presence of” a lawyer, officer of the Legal Aid Council, an official of a civil society organization, a justice of peace or any other person of his/her choice. This is remarkable in that it goes beyond the provision in Lagos, which demands only the presence of a lawyer or video recording of the process. To that extent, the ACJ Act is broad enough to guarantee some modicum of objectivity in the process. Participants in the system would be interested to see how this works out in practice.

Over the years, Justice Initiative has advocated a lead role for the attorney general both at the federal level and in states, in accessing data on pretrial detention with a view to advancing pretrial justice. The ACJ Act sees the merit in this proposal. It directs the Inspector General of Police and heads of agencies authorized to arrest suspects to transmit a record of arrests in relation to federal offences to the Attorney General of the Federation. The same applies in the states, where Commissioners of Police are mandated to turn over similar records to Attorneys General. When this is implemented, Attorneys General, as chief law officers, will have a better sense of who comes into the criminal justice system, for what offences and for how long. To strengthen this provision, there is an additional requirement for officials in charge of police stations or other detaining institutions to report monthly to the nearest magistrate, the cases of all suspects arrested without warrant. Again if effectively implemented, this would ensure that suspects are not lost in the system.

In a step designed to directly introduce some accountability to the remand process, the ACJ Act introduces long expected detention time limits and establishes appropriate protocols in Part 30. First, it requires the establishment of a “probable cause” as against the current practice where magistrates simply avoided jurisdiction to review the case before making a remand order. Remand orders issued pursuant to this law shall not exceed 14 days in the first instance subject to another 14 days. After 28 days, the prosecuting/detaining authorities must demonstrate why the suspect should not be unconditionally released.

Taken together, these provisions have the potential to re-set the pretrial detention dynamic in Nigeria. It is obvious that for this to happen, all stakeholders must work individually and collectively with the same objective in view. Justice is a three way street, it should be available to the state, the victim and the suspect. As the most vulnerable of these, suspects deserve every support they can get on the path to justice.