By Sylvester Udemezue
A. BACKGROUND
Please read the piece written by my respected senior learned friend and corruption-free-judiciary activist, Bayo Akinlade and published under the head, “Prison Congestion: Only The Judiciary is Responsible — A Case of Dele Farotimi” on December 04, 2024 in TheNigeriaLawyer. The main focus of Mr Akinlade’s main commentary appears to be the ongoing (“criminal defamation”) case initiated by eminent lawyer, Aare Afe Babalola, SAN, LLD, OFR, CON against activist lawyer, Dele Farotimi in which Dele Farotimi who was taken away from his Lagos residence/office to Ekiti State and later arraigned on charges bordering on criminal defamation (and cyberbullying) before a Magistrates’ Court in Ekiti State which then refused to grant the Defendant bail, insisting on the application for bail being formal. The Magistrate’s stance resulted in the Defendant being remanded in prison custody pending a formal application for bail; the remand order has led, according to my great friend Bayo Akinlade, Esq, to prison congestion. Mr Akinlade believes that a defendant who enjoys the right to presumption of innocence enshrined in Section 36(5) of the Nigerian Constitution ought to be treated as innocent until his guilt is established before a competent court, and accordingly, in cases such as Farotimi’s, such a defendant ought to be granted bail promptly pending their trial, to avoid creating unnecessary congestion in the prisons. Learned Bayo Akinlade seems to be suggesting that bail should not be denied an accused person as a form of punishment and I completely agree, just as I agree with the following conclusion by Mr Akinlade:
“…if the reports are true that he is now in prison and was not granted bail on self recognition then I opine that the Court completely missed the opportunity to justify itself as not being influenced by outside forces…. The Judiciary has simply made a statement that it will punish a suspect regardless of the principle of fair hearing because as it stands, Mr. Farotimi was not only arrested, he was detained and he may now be in a congested prison just based on an allegation that is yet to be adjudicated upon. In essence I am saying that the suspect is now suffering for what he has not been found guilty of”.
Although I agree with the above argument by Mr Akinlade, it is important to observe that impression created by the title of Mr Akinlade’s though-provoking piece appears to be that only the judiciary is culpable as a contributory in the ugly trend of prison congestion that has become a major bane of Nigeria’s system of administration of criminal justice. Thus, while I agree that the Nigerian judiciary is a major culprit (contributory factor) in the offence of prison congestion and delayed justice delivery in Nigeria, with due respect, I disagree with Mr Akinlade’s suggestion that “only the judiciary is responsible” for prison congestion. Accordingly, the purpose of the present commentary is to demonstrate that, outside (in addition to) the obvious lapses and malfeasance of some members of the judiciary, many other factors are equally blameworthy for prison congestion and delayed administration of criminal justice in Nigeria. Identifying prevalent bad governance, the Nigerian Police and other law enforcement agencies as major culprits, the commentary identifies and discusses some other causes and major factors and offers some recommendations for progress in the interest of Nigeria and its failing system of criminal justice administration.
B. OTHER CAUSES OF PRISON CONGESTION AND DELAY IN JUSTICE DELIVERY AS WELL AS RECOMMENDATIONS FOR PROGRESS.
- Filing of Frivolous Criminal Charges By the Police and Other Agencies Is A Major Cause of Prison Congestion and Delay In Justice Administration: Delay in concluding criminal trials in Nigerian courts results partly from frivolous and baseless charges filed by the Police and other Law Enforcement Agencies, following mostly hasty, shoddy, corrupt, compromised, prejudiced and inconclusive investigations. Multiplication of such needless charges leads to over-clogging or over-congestion in the courts and imposes too much pressure/burden on the courts, resulting in delayed criminal justice administration.
- Retention of Non-Lawyer Police Prosecutors In Criminal Prosecution in Nigerian Courts: Much of criminal prosecution in Nigeria is personally handled by non-lawyer policemen who (in my humble opinion) are grossly incompetent and hardly knowledgeable in the objects, principles and practice of law, public prosecution, criminal justice administration and the rudiments of criminal trials in the courtroom, to accord with best practices in rule of law and due process. The continued involvement of such Square-Pegs-In-Round-Holes in criminal trials, more often than not, cause undue complications leading to unnecessary delays in conclusion of pending criminal trials. This is among the issues that featured in my paper titled, “Disengaging Lay Police Officers from Criminal Prosecution for a More Efficient Criminal Justice Administration in Nigeria” where I made the following observation, among others:
“Lay police officers’ involvement in criminal prosecution is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country. Because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions, because these lay police officers do not understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not have very little or no preparation prior to their court appearances”.
3. Over-Congestion of Courtrooms Leads to Acute Delays: It is my humble opinion that over 85 percent of all criminal prosecutors in Nigeria are policemen, and a higher percentage of that number are non lawyers, and especially prosecuting in the inferior courts where we have over 90 percent of all criminal trials pending or filed. In most Magistrates’ and Area Courts in Nigeria, you find only one police prosecutor in a courtroom; most courtrooms have, each, over 2,500 criminal cases pending before them, all being handled, inmost cases, by one non-lawyer police prosecutor! In many courts in Lagos State, for example, over 50 criminal cases are listed for either mention, trial or arraignment on every juridical day. How do you expect accelerated criminal dispensation or effective progress under such a scenario, especially where defendants are on prison remand? Nigeria is on a go-slow movement, but administration of justice is on a total standstill mode in Nigeria. We are in a horrible state of hopelessness! Section 66(2) of the Nigeria Police Act, 2020, which authorizes non-lawyers to appear as prosecutors in courts of law should be amended as a matter of extreme urgency. There is hardly any good ground for continuing to accommodate lay prosecutors within the Nigerian criminal justice space. Use of lay prosecutors in criminal justice administration has become outmoded and ought to be discontinued in all courts, as the practice has done and still does more harm than good to our judicial and justice system. The Nigerian Federal legislature (the National Assembly) deserves kudos for the innovative stride in the ACJA, 2015, but the job is not complete until all other relevant statutes are modified to follow suit, so as to rid our criminal justice system of activities of quack prosecutors who, as far as criminal prosecution is concerned, are nothing but square pegs in round holes.
4. Change of Attitude By the Police: The Nigerian Police must appreciate that Nigeria’s criminal justice system is adversarial and not inquisitorial. The accusatorial/adversarial criminal justice system which Nigeria has opted for is designed to ensure fairness and protection of every person accused but not convicted of crime, so that people do not get wrongly convicted. Freedom is paramount and any reasons for taking it away must be compelling and apparent even in the face of unmitigated advocacy for the accused. Should the State fail to sustain its charge, then the accused should be set free. Accordingly, every accused person is presumed innocent until proven guilty before a competent court of law. Further, the role of the prosecutor in court in criminal proceedings is not, by all means to procure or achieve “conviction” of defendants. Accordingly, the Police should not feel discouraged when an accused person is discharged or otherwise acquitted from criminal charges levelled against him. It is better for ten wrongdoers to go scot-free than for one innocent man to suffer unjustly. Besides, as Daniel Defoe once said, “Oftentimes, we hear much of people’s calling out to punish the guilty; but very few are concerned to clear the innocent”. Further, as I wrote in a commentary published on 24 September 2009 (by Vanguard) under the title, “Is justice slow in corruption cases?” (I recommend this commentary to all), “Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (per Justice Benjamin Cardoso in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)). Also, as Justice William Orville Douglas rightly stated, the function of the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; his function is to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial”.
5. Improved Welfare, Reform, Training and Retraining for the Police Force: Improved welfare packages will help in curbing corruption. Reform, training and retraining will help to improve investigation procedures and respect for human rights, as well as to reduce filing of frivolous charges which lead to court and prison congestion that in turn contribute to delay in, and debasement of, justice dispensation.
6. Implementation of the Provisions of section 66(3) of the Police Act, 2020: This would yield the following benefits, inter alia, in both the long and short term: (I) Many Lawyers would get immediately employed into the Police Force; (II) Will contribute to promoting Rule of Law at the police stations, and by Police Officers, as each Police Station would now have a DLO (Divisional Legal Officer) to render advise and expert direction on issues related to observance of rule of law and respect for human rights; (III) Lawyers would be on hand to assist or to advise on compliance with due process in criminal investigation and prosecution (by the police) in magistrates’ courts around the various police stations; (IV) Filing of baseless charges by ignorant lay police officers, and overzealous and corrupt police officers would be drastically reduced leading to de-congestion of our courts and the prisons (V) Such would drastically reduce the usual friction between Policemen involved in criminal investigation and Lawyers who go to police station in cases involving their clients.
7. Introduce Other Practical Measures to De-Congest the Courts: Rules amendments, as good as they look, would achieve only very little if we do not take urgent, steps to install impregnable measures aimed at decongesting our grossly overloaded courts and prisons;
8. Appointment of More Judges and Magistrates: There is an urgent need to appoint many more Judges and Magistrates.The current ones are grossly overworked. Speaking specifically, a State as Lagos with over 22 million residents, deserves no fewer than 200 to 250 High Court judges or even more, if it hopes to adequately de-congest the courts and the prisons thereby accelerating criminal trials. No amount of amendment to procedural Rules of the Courts can make up for the noticed inadequacy in the number of judges which is a major reason one sees no fewer than 30 or more cases on the Cause List of most of the courts every juridical day. For the Magistrates courts, the Cause list is usually endless, thus creating room for all sorts of shenanigans on the part of litigants, prosecutors and Defence Counsel under situations in which the presiding Magistrates’ hands are tied, in that you can’t expect them to hear more than 5–10 cases on a date the cause list parades more than 50 cases. Body no be wood na! Appointing more judges and magistrates would make each judge to handle fewer cases on each day. In that way, judges would have enough time to carry out serious research before coming out with judgments and rulings. There are many other benefits. At the present time, no State or court in Nigeria has sufficient number of Judges’ and Magistrates.
9. Reduction in the Periods of Court Vacation: Length of annual court vacation should be reduced to, say, four weeks at most. Unnecessary court vacations should be scrapped. See “How Leaders of Nigeria’s Judiciary Dissipate Valuable Time On Irrelevancies To The Detriment of Effective, Efficient Administration of Justice (part 1)” – By Sylvester Udemezue, May 16, 2020 in many media outlets in Nigeria and beyond, including barristerNG, TheNigeriaLawyer.
10, Amend Laws/Rules of Court only when Reasonably Necessary: Frequent amendments of Court Rules, sometimes, contribute to worsening an already ugly situation. Our problem is not much with paucity or dearth of good Laws/Rules as it is with our wayo-wayo, mago-mago and cunny-cunny attitude towards implementation and obedience to these laws.
11. Strengthen ADR Processes and Procedures to Make Them More Effective: Rules relating to ADR processes ought to be strengthened in line with prevailing realities. Parties should be compelled to resort to ADR in deserving cases; otherwise their cases should be thrown out and opportunities for re-listing absolutely foreclosed. Making resort to ADR optional leaves us with a weak situation because most litigants hardly opt for ADR. Nigerians love their EGO so much.
12. Full Incorporation of Restorative Justice Processes into Criminal Justice Administration in Nigeria
13. Introduction of Stringent Sanctions Against Judges Whose Indolence or Poor Attitude to Work Causes Delay in Criminal Trials and Prison Congestion: Introduce enforceable sanctions against judges and Magistrates who fail to sit without reasonable cause. Define “reasonable cause”, and give lawyers and litigants right to write petitions against judges who fail to sit. Set up an independent body to hear such petitions in each state/court. Set a non extendable timeline for such hearing. Punishment should range from demotion, withholding of salaries to suspensions or delay or denial of promotions for defaulting judges and Magistrates.
14. Fix Non-Extendable Times for Filing Court Processes, Hearing and Judgment: Amend existing laws to provide reasonable, practicable, but non extendable timelines for doing virtually everything that is done in court — filing of processes, service of processes, filing of all responses, filing and hearing of amendments, conduct of trial, delivery of judgement, filing of appeal, hearing of appeal, filing of further appeal to the SC, hearing and determination. The concept of ‘extension of time’ must be abolished for Nigeria’s justice delivery system to work effectively;it has contributed greatly in making many lawyers, judges and other stakeholders, lazy, while corrupting, and slowing down the wheel of justice delivery system in Nigeria. Delay in administration of justice slows down the economy, delays the country’s progress by discouraging investment.
15. Improvement in Power Supply/Alternative Power Source — The importance of steady or stable electric power supply in the effective, efficient administration of justice.
16. Full Utilization of ICT Facilities: ICT personnel ought to be attached to each judge or magistrate to oversee e-dissemination of information relating to proceedings and cases pending before each judge/Magistrate. Aside this, each judicial division must have a 24-hour functional and functioning ICT center to ensure that the menace of court-is-not-sitting is nipped in the bud by prompt and advance dissemination of information relating to court sittings, hearing, processes, etc.
17. Introduction of Full E-Filing and E-Service of Court processes and Full utilization of e-hearing/Virtual hearing of cases: These would make for a more effective, efficient and accelerated justice delivery. But these depend on many factors working effectively — Leadership; Support Structure; Internet Connectivity; Accessibility (to the Public); Managing Evidence; Privacy Issues; Literacy & ICT Awareness among stakeholders; Planning:Professional Responsibility.
18. Prevailing Bad Governance As a Major Catalyst to Worsening Insecurity, Escalating Crime Rate, Prison Congestion, Delayed and Ineffective Criminal Justice Administration: Rising crime rate, worsening insecurity and agitations all over Nigeria are partly traceable to frustrations and disenchantment arising from failed governance, mis-governance or lack of good governance in Nigeria especially in the most recent past. People’s pains and unbearable sufferings can lead them into what they never intended to do. You cannot take this factors away when discussing causes of rising insecurity, worsening crime rate in Nigeria, prison congestion and delayed, debased criminal justice administration in Nigeria, although, as has been said, “if poverty is the mother of crime, want of sense is its father”. Truth is, bad governance at all levels and in all sectors is a major cause of prison congestion and delayed justice delivery. Now, how many of the modern indices/features of good governance are present in Nigeria? In another legal commentary, I identified the concept of good governance as a model for comparing ineffective economies or political bodies with viable economies and political bodies. The concept of good governance centers on the responsibility of governments and governing bodies to meet the needs of the masses as opposed to satisfying select groups in society. As I wrote in a paper, “bad governance is increasingly viewed as one of the root causes of all evil within our societies” According to UNESCAP, good governance possesses eight major features:
I Participation (could be either direct or indirect);
II. Rule of law (good governance requires fair legal frameworks that are enforced impartially, full protection of human rights, particularly those of minorities);
III. Transparency (adherence to due process as well as availability and accessibility of information);
IV. Responsiveness (timely and responsible responsiveness to the challenges of the society engenders trust and acceptability);
V. Consensus oriented (mature, reasonable, fair-balancing and reconciling of the many conflicting interests and needs in a given society);
VI. Equity and inclusiveness (managing the society in a manner that affords a sense of belonging to the various interests within the society);
VII. Effectiveness and efficiency (governance must be result-oriented and the results must be such that meet reasonable expectation of all stakeholders. Efficiency involves sustainable use of available resources while effectiveness entails producing results that meet the needs of members and stakeholders in the polity; and
VIII. Accountability (the leaders must be accountable to their stakeholders and all who may be affected by their decisions. Observance of the requirements of transparency and rule of law ensures accountability, equity, inclusiveness).
How many of these features of good governance are present in Nigerian leadership? The behavior of our leaders and their style of leadership are a core factor in discussions relating to worsening insecurity and escalating crime-rate, prison congestion, delayed, corrupt and debased dispensation of criminal justice in Nigeria. Good governance has eluded Nigeria for much of the past decades, and especially in the recent past. Bad governance is the best cause and the most effective promoter of crime and insecurity, prison congestion and justice delay. Each of all the other factors identified above is somehow and somewhat, to some extent, traceable to the effects of bad governance. Our plight in Nigeria is best captured by the words of Che Guevara: “Cruel leaders are replaced only to have new leaders turn cruel.” In David Hume’s words, “The corruption of the best things gives rise to the worst.” Hence, until we enthrone good, transparent, impartial, inclusive and selfless governance, we might never get it right in our fight against crime and insecurity, and in our efforts to achieve speedy and meaningful decongestion of the prrison as well as to enthrone an effective justice administration system, although an effective judiciary is an enhancer of good governance.
19. Additional Role of the Bar and Bench: Members of the Judiciary have roles to play in bringing about accelerated justice delivery in Nigeria — These include: Constitute Administrative Heads for Courts, distinct from the judicial head, to ensure frequent Monitoring and Supervision of Judges; Decentralization of Judicial Disciplinary procedures — the National Judicial Council is not enough, should handle only serious [blessingw1] cases bothering on breach of code of conduct. Set up other Panels/Committees to discipline judges who do not sit or are found to delay cases; Abolition all manner of Long-Hand recording in the courtroom and introduce mandatory E-Recording and E-Transcription; Introduce a New Criminal Justice Regime; Massive Judicial Training and Retraining; among others. Finally, stakeholders should explore urgent and stringent measures to improve governance at all levels, starting with an impregnable reform of Nigeria’s election and leadership recruitment processes and systems.
Thank you.
Sylvester Udemezue (udems),
Lawyer and Law Teacher, is The Proctor,
The Reality Ministry of Truth, Law and Justice (TRM.
08109024556. lawmentorNG@gmail.com.
therealityministry:gmail.com
(05 December 2024)
