My name is Olaleye Priscilla Ifeoluwa, a 400
level clinician from the University of Abuja Law Clinic and my experience under
the NULAI/OSIWA pre trial detention project was full of good and bad memories.
It was a good experience because throughout the project, I felt the joy of
being an advocate for the course of Justice. It really made me feel for the
first time like a lawyer that I want to be and not a law student that I am.
More so, I was able to have a glimpse of what to expect as a lawyer.
After vigorous preparations on team work,
interviewing and counselling, working with ethics and values, we visited Suleja
Prison.
On arrival at the prison facility and to my
dismay, the situation was gory and unpleasant to behold. The mere sight of
people locked up in a building was very disturbing and also seeing human beings
like me looking frustrated and helpless. At that time I could not help but
yield to the urgency of the situation and proceeded with the business of the
day.
We had to show genuine empathy just as we
listened patiently and attentively to their story. Due to the empathy we showed
to these inmates, it made some of them tell us the undiluted and unadulterated
truth of what really transpired that led them to their current predicament.
This in fact made the interview smooth and easy.
From all the stories the inmates narrated, one
cannot fail to deduce several issues that rendered the Nigerian Justice System
ineffective such as torture, oppression, unavailability of lawyers to stand in
for inmates, keeping inmates for long without informing their next of kin or
any relation of their whereabouts, arrest in lieu, and in some instance,
inmates were granted bail but no surety to stand in for them.
It was further observed that the prison
vicinity was not in good shape, there were too many persons confined in a small
area. Most of these
detainees had not taken their bath, brush their teeth, washed their cloths in
weeks if not months and consequently, most of them had offensive body odors,
which is obviously caused by the inefficiency of the Nigerian Prison. Little
wonder why a correctional facility is now a place that turn inmates to hardened
criminals.
Juxtaposing the provisions of the law,
Administration of Criminal Justice Act to be precise, and the stories of the
inmates interviewed, one cannot fail to see that those acts are manifestly in
contradiction with our rule books.
Martin Luther Jnr. once said that “Law and order exist for the purpose of
establishing justice and when they fail in this purpose they become the
dangerously structured dams that block the flow of social progress”.[1] A calm consideration of
the words of this illustrious and larger-than-life human right activist would
establish two things: One, that there is a symbiotic relationship between law,
order and justice and two, which is the most important inference, that what
determines the balance of justice and order in the society is the effectiveness
of the law. In other words according to Martin Luther, the major determinant of
whether the society is progressing positively or not is the effectiveness of
the law.
By virtue of Section 7 of the ACJA, the police
or any other law enforcement agency with power of arrest can no longer arrest
another person in lieu of a suspect, as such is now prohibited. When juxtaposed
with previous happenings in Nigeria when a suspect’s relative or friend could
be whisked away and incarcerated, in the stead of the real suspect, it would be
seen that the previous practice was indeed a violation of the individual’s
inviolable right to dignity of the human person guaranteed under Section 34 of
the 1999 Constitution of the Federal Republic of Nigeria (Constitution).Still
on the recognition of the right of an individual to the dignity of the human
person, Section 8 of the ACJA provides for the right of individuals from
illegal, cruel and unconstitutional treatment which affects their human person
in a bid to protect human dignity. The provision of Section 34 of the
Constitution has been in the grundnorm of the Nigerian justice system for
decade and yet the court has been slow to enforce same in criminal matters
either because there is no will power or because it can only be enforced by an
accused person before a civil court.[2]
However with the prohibition against torture and degrading treatment included
in the ACJA a procedural law for criminal matters, same can easily be enforced
in criminal matters or at worst could serve as deterrent against investigating
police officers and other officers of law enforcement agencies. In line with
this section 6(2)(c)ACJA also stipulates as follows: The police officer or the
person making the arrest or the police
officer in charge of a police station shall inform the suspect of his right to:
Black’s law dictionary defines “torture” as
the infliction of severe mental or physical pain on a person in order to
intimidate or punish the victim or to elicit the victim.
On procedure for taking suspect’s statement,
the Act provides in Section 17 that where a person is arrested on the
allegation of having committed an offence, his statement may be taken in the
presence of a legal practitioner of his choice, or where he has no legal
practitioner of his choice, in the presence of an officer of the Legal Aid
Council, official of a Civil Society Organization, a Justice of Peace or any other
credible person of his choice. The legal practitioner or any other person
mentioned in this provision shall not interfere while the suspect is making his
statement.
This provision is to the effect that a suspect
is given the opportunity to seek legal counsel as to making a statement as it
is within the constitutional rights of a suspect to refuse to make any
statement to the police. See F.R.N v.
Wabara[3] as well as Section 36(6) of
the 1999 Constitution of the Federal Republic of Nigeria which guarantees a
suspect to remain silent and not give evidence which would incriminate him as
to the commission of an offence. Furthermore, Section 15 (4) of the Act
provides that where a person, arrested with or without warrant, volunteers to
make a confessional statement may do so in writing or may record the making of
the confessional statement electronically on a retrievable video, compact disc
or such other audio visual means. The previously prevalent practice within the
police force before now has been a situation where suspects are placed in
excruciating pain and discomforts in the form of torture ostensibly to obtain
evidence from suspects, most times, against their wish. These challenge goes to
the extent that rarely in no criminal proceeding does a defence team of counsel
fail to object to the admissibility of the said statement relying on Section 28
and 29 of the Evidence Act, 2011 which stipulates that no confession shall be
admissible if obtained by torture, inducement etc. This objection invariably
leads to a trial-within-trial which most times translate to prolonged trials,
far more than reasonably acceptable by the common man on the street. The ACJA
has therefore in this regard taken a huge step in correcting this anomaly in
our criminal justice system. But sadly, the Act though still a toddler, has
been relegated to the back sit as though it does not exist.
More so, the right to bail, which has been
existing since time immemorial, was further emphasis in the ACJA. The community
reading of the provisions of Sections 30- 32 and 158-164 of the Act, it could
be deciphered that the Act has attempted to simplify the right of an
accused/defendant to obtain bail without much ado. It permits oral application
for bail in non-capital offences. The Act also made provisions for bail
applications in capital offences wherein such a defendant/accused can be admitted to bail by a High Court Judge
under exceptional circumstances which includes: (a) ill health of the applicant
which shall be confirmed and certified by a qualified medical practitioner
employed in a government hospital; (b) extraordinary delay in the
investigation, arraignment and prosecution for a period exceeding one year; or
(c) any other circumstances the judge may, in the particular facts of the case,
consider exceptional. These provisions brings liberalism to criminal justice
system as it tries to protect the inviolable status of the human person as
opposed to its previous state where bail conditions were not expressly defined
and oral applications for bail were not allowed in superior courts of record.
This innovation is pursuant to the Act’s
reformative and restorative approach, provided that a court having regards to
the necessity to reduce congestion in prisons; rehabilitate prisoners by
ordering them to undertake productive work that would be of more importance to
the society than prison terms. Furthermore, there is the need to prevent the
incarceration of first time offenders and simple offence offenders from being
placed in same custody with serial and hardened offenders. It also allows the
court to suspend the sentence of such first time offenders dependent on the
circumstance of the case as to such terms or conditions of the suspension.
However, this approach shall not apply in any offence where the convict has
been found to have used arms or offensive weapons in committing the said
offence or for an offence for which the punishment exceeds imprisonment for a
term of 3 years. This approach to criminal justice adjudication is provided for
in Sections462, 463 and 466 of the Act.
It is
imperative to state here that this approach is in sync with international best
practices and as well in the spirit of the real intention of criminal
litigation which is to and I quote “Every
saint has a past, every sinner has a future[4]” “… the humanistic
approach should not obscure our sense of realities.”[5]
It is therefore very commendable as it suppose prevent the release of prisoners
from prisons who turn out to be more hardened than they were before their
imprisonment due to the peculiarity of our prisons.
What I experienced in the prison is a
practical example of a failed system, the police are less concerned of the
inmate not bearing in mind that they are still “suspect” and need to be proven
guilty in accordance with section 36(5) of the 1999 constitution as amended
2011.
After
the interviews, it is obvious that over 60% of these inmates are just there
without hope waiting for a “messiah” to rescue them. Their loved ones and next
of kin do not know there were about and have given up on them that maybe they
are dead or have been kidnapped because some of these inmates were picked up by
the police during their patrol for no just course, unknown to their loved ones
that that they are wallowing in prison without anyone to rescue them. The
sections of the ACJA also have to be implemented and practiced.
The wordings of the ACJA are clear and
unambiguous but from practical example of what I saw in the prison it is only
documented in the act and not implemented. One of the inmates that was
interviewed narrated how he was arrested and dumped in the prison in place of
his friend when the police could not lay hold of his friend. He honestly said
that though the suspect sought after was his friend but he has not seen in
months due to the nature of his work, but he is popularly known with suspect
sought after, and because of this, he was arrested in lieu of his friend. After
listening to his experience, it is safe but pathetic to say that the act of the
Police who are suppose to uphold the law is in sharp and obvious contradiction
of the ACJA, particularly Section 7 of the Act.
The clear and unambiguous words of our rule book, especially the ACJA on torture has
been sidelined and only exist in the imagination of John Doe, an inmate
interviewed, I was moved to tears when he narrated how he was brutalized by the
Police and coerced into signing a confessional statement confessing to a crime
he knows nothing about, the Inmate thought the torture was over when he was
shipped to Suleja Prison, unknown to him, it was the beginning of another
season of torment, both physically and emotionally, as a new inmate, he was a
servant to other inmates, the inconducive and inhabitable Prison made him cry
on daily basis, not been able to brush his teeth, take his bath, wear clean
cloths. In my opinion, these things are torture which should never find
expression in any sane society
Having discussed all the issues, I discovered
while interacting with the inmates I realized that the project is a significant
one because I learnt so many things. It has given me more insight on the ACJA
and it has also given me an idea to conduct an interview. It has also
inculcated in me values which prior to know I do not value that much such as my
freedom and also not to be judgmental. This made me give a deep thought to what
Neol Gaiman said when he stated that “there was only one guy in the whole bible
Jesus ever personally promised a place with him in paradise. Not Peter, not
Paul, not any of those guys. He was a convicted thief, being executed. So do
not knock the guy on the death row maybe they know something you don’t”.
My participation has made me to be more
conscious and attentive to peoples feeling and it has helped me to be more
careful in concluding on issues.
I also believe that my active participation
would change the world around me if I continue advocating for access to justice
diligently.
I regard any form of in justice as torture and
should not be condoled in line with what Roma Tearne said on torture “once you
have been tortured, you can never belong in this world. There is no place that
can ever be like your home”.
It is therefore my humble recommendations that
the citizenry be made more aware of their rights, this can be achieve through
organized and deliberate effort in town hall meetings, public lectures,
jingles, flyers etc. Also, the Nigeria Police should be orientated and
restructured with the sole aim of fishing out the bad eggs and consequently
achieving best globally accepted practice where rights of a suspect is not only
respected but also protected, where confessional statement will not be coerced
from a suspect, where friends and family members of the a suspect will not be
arrested and incarcerated in lieu of the accused. I also vehemently believe
that the Judiciary also has a role to play in ensuring that the law enforcement
officers comply with all the provisions of the law, the ACJA to be specific,
and where an officer errs; a scapegoat should be made of him to serve as a
deterrent to his colleagues.
Lastly, the provisions of A CJA with regards
to community service should be put to use, this will go a long way in
decongesting Nigerian Prisons and perhaps, one day, we will be able to
comfortably call is a Correctional Facility again.
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