How implementation of ACJA can help decongest prisons
The ever-increasing number of prison inmates and its attendant human rights violation has been attracting attentions of civil society groups. Recently, a human rights organization – Citizens United for the Rehabilitation of Errants (CURE-Nigeria), undertook a tour of Nigerian prisons, at the end of which it recommended reforms based on full implementation of the Administration of Criminal Justice Act (ACJA 2015).
The group, through its Executive Director, Sylvester Uhaa, specifically called for drastic implementation of Section 293 of the Act. This segment of the law has stipulated a maximum period of 72 hours within which an accused would be granted bail or charged to court.
Linking the deplorable physical and emotional states of inmates to over population, Uhaa raised the underlying issue of unchecked violations of the rights of inmates, and reminded the government of the provision of Section 35 (4 & 5) of 1999 Constitution, which also frowned at prolonged pre-trial detention.
Uhaa also took special interest of the worrying phenomenon of the growing numbers of women and babies confined in prison without basic care. He suggested that where it becomes absolutely necessary for pregnant or nursing mothers to be detained in prison custody, adequate medical and basic should be provided.
With pre-trial inmates constituting about 70 of prisons population, Uhaa noted that the right to be presumed innocent until proven guilty by a court of competent jurisdiction, is enshrined in both local and international laws and human rights instruments, and should be respected by Nigerian government.
“The arbitrary and excessive use of pre-trial detention in Nigeria, besides being a driving factor for increasing prison rates, is a massive form of human rights abuse.
“Out of the over 72,000 prison population, more than 47,000, representing 70, are awaiting trial. And this does not include hundreds of detainees in Police stations and other detention centres across the country.”
He frowned that the poor and powerless, who lack the financial strength to hire lawyers, procure bail (or bond), or pay a bribe, are usually victims of long pre-trial detention. “Poor and marginalized people, who lack the social and political connections and influence that can facilitate pre-trial release, are most vulnerable to this situation.”
According to him, most victims of pre-trial detention are often treated worse than convicted persons as most of them are held in over crowded and harsh conditioned Police lockups that are not designed for long-term occupancy. Unfortunately for this group of people, only little attention is devoted to them as they are considered temporary detainees, even though in actual fact, many of them spend longer time in prison than convicted persons.
“This is why we continually advocate an adjustment in our laws and policies to allow detainees participate in all rehabilitation and re-entry programs in the prisons”, Uhaa added.
Speaking on the issue, an Abuja based lawyer, Barrister Ogbu Oche, described the situation as unfair to the inmates and unfair to the system. While outrightly condemning a situation where inmates are confined in custody beyond the term they would have served if convicted, Oche canvassed a law, stipulating that where a detainee stays beyond the period he is sentenced to serve, he should be allowed home upon conviction.
This, he believe, would put the prosecuting authorities on their toes. His words: “It is wrong that inmates stay in prison, sometimes, beyond the terms they would have served the prison if they are convicted.
“It is not fair to them, it is not far to the system. They ought to be a law stipulating that if you have served your term of imprisonment by reason of your stay as awaiting trial inmate, if you are finally convicted, you go home.
For Barrister Victor Oziegbe of Victor Oziegbe and Associates Chambers, an inmate, not yet pronounced guilty, has a high level of constitutional right just like the man outside the prison. He held that an inmate, whose right to freedom is violated, has the right to approach the court for a remedy.
“We have prison visitation by some lawyers and some bodies, including religious bodies and non-governmental organisations, who they can make the complains to.
“There are some lawyers that take such cases on pro bono basis; they can approach them so that they take the matter up. So, it is also left for them to cry out because if they don’t cry out, the man that is outside may not know what is happening.
“That is actually the reality of it because you don’t expect the prison authorities that picked the person to be the one that will institute the action against the violation of rights of inmates.
“It is also left for them to make a case. Imaging somebody awaiting trial for five to 10 good years, we have such situations of course, but that is an infringement of rights.
“So, that person ought to approach the court. Since they are confined to such environment, when they see a lawyer on visitation on a pro bono basis, or a religious body, they can cry to them, narrate what they are experiencing, then they can take it up.
“That is the way to go because that is actually part of the reasons we have prison congestion. If they start approaching it in that manner, it will also amount to the decongestion of the prison. So, they also need to take their destiny in their hands”, Oziegbe stated.
Aside the issue of rights violation, Uhaa believed that a reduction in the pre-trial detention population could generate significant savings for government, which could be channeled towards crimes prevention through investment in education and social services.
“The societal costs of excessive pre-trial detention even extend into the future. Most prison environments are criminogenic; that is, prisons serve as breeding grounds for crime.
“Prisons psychologically harm incarcerated people, making it more difficult for them to live normal, productive lives, and more likely that they may take up crime”, Uhaa held.
He further argued that rather than construct of 3000 capacity prisons in each of the country’s geo-political zone, as planned by the government, a wholistic approach to justice reforms should be pursued.
“While we are aware of the urgent need for modern prisons to meet humane and international standards, we are concerned that building of prison in isolation from prison decongestion and other reforms, will yield no good.
“We believe that if new prisons are built without investment in justice and prison reforms, investment in addressing causes of crime, the new prisons will soon be filled up with awaiting trial inmates”, Uhaa stated.
Noting that prison is of limited protective, deterrent or corrective value, he recommends that the use of imprisonment should only be a last resort.
According to him, no nation achieves public safety by indiscriminately sending her people to prison. “It is high time Nigeria moved fully into the 21st century and developed an approach to incarceration that offers more to people in prison and the community than simply secure custody.
“A situation whereby our prisons are becoming more and more like warehouses for the poor, economically and socially marginalised, offering no hope for those imprisoned and to the wider community that may be under the illusion that imprisonment will bring real change, must be rejected.”
Uhaa decried that more than two years after the passage of the ACJ Bill into law, only few states have domesticated it, and where it was domesticated, implemented has remained very poor.
He therefore called on the stats government yet to domesticate the Act to do so as a way of assisting government use the available resources to manage the prisons effectively.
“We call on the state that have not domesticated the Act to do so, and we call on the full implementation of the Act in States that have domesticated it, especially the part that deals with alternative sentences and other diversion methods, so that we can enjoy the benefits of this provision such as a decongestion of prisons.
“We also call on the amendment of some sections of the Act, which violate basic international and human rights principles, and have given some unscrupulous law enforcement officers room to abuse human rights.
“In particular, we call for amendment of Section 293. This section empowers law enforcements to apply to a magistrate court that do not have the jurisdiction to try a matter to remand suspects in custody, pending investigation and advice from the Attorney General.
“Section 293 of the ACJ Act is inconsistent with Section 35 (4) of the 1999 Constitution. While section 35(4, 5) of 1999 Constitution contemplates arraignment and trial, section 293 of the ACJ Act only contemplates remand, and empowers magistrates to remand suspects for alleged offences they have no jurisdiction over.
“This section is a threat to the right to personal liberty guaranteed by the 1999 Constitution which states that an alleged offender should be brought before the court within 24 hours or at most within 48 hours for arraignment and trial,” they stated. On the abuse of human rights in prisons, the group noted that the only rights of prisoners that is suspended during arrest, trial and detention, is the right to liberty and freedom of movement.
It however noted that the rights of prisoners to decent living conditions, nutritional food, educational, rehabilitation and reintegration programs are systematically and consistently violated.
“And each time they express their grievances, heavy armed security guards are called in to silence them. One of such incidence is the alleged killing of six inmates and wounding of many in 2016 in Abakiliki Prison, Ebonyi State.
“Following our petition to the National Human Rights Commission, an investigation committee was set up. But almost a year after that incident, the Commission is yet to make its findings public and Nigerians have no knowledge of what really happened.”
Uhaa therefore urged the Commission to make public, its findings, prosecute those found wanting, and make recommendations to prevent future reoccurrence.
In conclusion, Uhaa stated that although incarceration may sometimes be necessary for public safety, that alone cannot provide the entire solution to crimes prevention.
“Simply building more prisons and jails will not solve all our problems. Any effective and economically sustainable public safety strategy must include investments that will help reduce recidivism and to address the root cause of crime”, he said.
In his reaction to the issue, a Senior Advocate of Nigeria (SAN), Kehinde Akinlolu blamed the problem of prolonged pre-trial detention on lack of political will on the part of stakeholders in the system to ensure that the provisions of ACJA worked. He also identified lack of capacity to enforce existing laws as part of the factors responsible for prisons congestion in the country.
“The capacity to effectively implement the laws has not been built. It is not about lips service. In the ACJA, there is timeline for everything – timeline within which a man must be charged to court, timeline within which prosecution must be concluded, the number of adjournments one should be entitled to, and a timeline within which you must make reports, either as a Police officer, prison officer or a court registrar.
“You must make definite report to another authority. So, it is the very people in authority who are not doing what they should be doing”, he stated. The SAN however expressed the need for proper funding, as poor funding may also be a factor. For those saddled with oversight function, he urged them to serve the nation and not any other person.
According to him, it is fast becoming an embarrassment that prisons are filled to its capacity and there is no substance in cases filed against accused people.
“Yet, they are kept under lock and key in a crowded filthy custody. So, the capacity I am talking about must also include a change of heart so that things can work well in this country,” he said.
Barrister Adindu Ugwuzor on his part, observed that most of the time, the cases are not brought to court and when they do, the authorities suppress facts, go to magistrate and obtain detention order to keep inmates perpetually in prison under the guise of conducting investigation, whereas under the law, they ought to have finished investigation before arrest.
He stated that although inmates may know that their rights were violated, they however lacked capacity to fight for such rights. According to him, they are protected under Chapter two of the Constitution.
“But most times, the magistrates will grant bail with one hand and withdraw it through bail conditions. But Section 35 (4) of the constitution, which is right to personal liberty protects them,” he said.
For him, the only way out of the problem is for the chief law officers of the states to ensure that in conjunction with the human right session of each chapter of Nigerian Bar Association (NBA), the situation is brought to the attention of the Chief Justice of Nigeria.
“They should visit prisons and Police stations to know what is happening. NBA must arise for the poor in the society because the high and mighty are usually not in detention,” he stated.