Debriefing Asaba’s 5th Criminal Justice Conference

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How can the law become better? What other reforms are needed? How can prison congestion, transnational crime, criminal trial delays and corruption be tackled? Are special courts the answer? These and more were discussed at the Nigerian Bar Association (NBA) Fifth Criminal Justice Reform Conference in Asaba, the Delta State capital. 

It is not enough to have good laws. Their effective implementation matters. For years, the criminal justice sector was bogged down by delays and archaic administrative methods. The Administration of Criminal Justice Act (ACJA) 2015 was enacted to solve the problems. The law has been lauded for its noble objectives and reformatory provisions, but things have largely remained the same three years after its enactment.

The law provides for speedy determination of cases and day-to-day trials, yet there are still delays. It allows for non-custodial sentencing to help decongest prisons, but the detention centres are still overstretched. Police stations are required to video record suspects’statements, but such facilities are lacking.

With poor funding and players’ unwillingness to adapt to change and make the law work, the ACJA is yet to be effectively implemented. Experts say the minimal successes recorded so far are only the beginning of a long journey. A lot more still needs to be done.

This was the consensus of stakeholders who met for three days in Asaba, the Delta State capital, for the Nigerian Bar Association (NBA) Fifth Criminal Justice Reform Conference. It was organised by the association’s Criminal Justice Reform Committee chaired by Chief Arthur Obi Okafor (SAN). Its theme was: Criminal Justice reform in Nigeria: the journey so far.

The event drew key players in the criminal justice sector, including the Senate President, Bukola Saraki, the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, the Attorney-General of the Federation (AGF), Abubakar Malami (SAN), the Chief of Army Staff, Lt.-Gen. Tukur Buratai, the Inspector-General of Police (IGP), Ibrahim Idris, who were all represented.

Others were Delta State Governor Arthur Okowa, Economic and Financial Crimes Commission (EFCC) Acting Chairman Ibrahim Magu, Presidential Advisory Committee Against Corruption (PACAC) Executive Secretary Prof Bolaji Owasanoye, Independent National Electoral Commission (INEC) Chairman Prof Mahmood Yakubu, chief judges of the Federal Capital Territory, Anambra and Delta Justices Ishaq Bello, Peter Umeadi and Marshal Umukoro.

There were six sessions which featured over 50 speakers, with the sub-themes: Unlocking the innovations of criminal justice legislation, Arrest, remand and awaiting trial syndrome in criminal justice: fixing the jigsaw to end prison congestion, Speedy trials, times and interlocutory proceedings: Has the ACJA helped? Corruption, economic and financial crimes: Special courts to the rescue? Human trafficking and transnational crimes: institutional and legal remedies, and Prosecution and punishment of electoral offenders in Nigeria.

 The challenges

 Justice Bello set the tone of the discussions in his keynote address. The ACJA’s objectives, he said, will not be achieved without adequate funding. “The implementation of the ACJA is cost-intensive,” he said.

He said funding was required for witness support, and employment of probation officers with regards to the Act’s non-custodial sentencing provisions.

“Most cases are lost in court because witnesses are not there. Unless you make financial provision for them, some of them cannot come to court due to economic hardship,” he said.

Justice Bello said the appellate courts must be firm in ensuring that the ACJA is well implemented by ensure that the sectors that prohibit interlocutory appeals are complied with.

“Anyone who comes with interlocutory appeals should be asked to go back and return along with the substantive judgment,” he said.

The CJ also called for attitudinal change, nothing that “a lot has to do with attitude in enforcing the law”. He urged the Bar and the Bench: “Don’t be entrenched in the old order.”

Justice Bello who chairs the Presidential Committee on Decongestion of Prisons, regretted that the prisons were still filled with persons who have been awaiting trial for nearly 15 years in some instances, which defeats the ACJA’s purposes.

He said soon, the FCT High Court would review such cases and strike out those that have been hanging for too long, even if they are capital offences. He said where the Police decide to re-arrest any suspect whose case is struck out, they would be given two weeks to prosecute such suspects. “A lot of people in prison unfortunately have no business being there,” he said.

He also called for better training of state prosecutors, saying more lawyers should be engaged and helped to develop “a culture of prosecution”. “Allow them to handle high profile cases,” he advised. His reason is that there is a lukewarm attitude to prosecution by external counsel who lose enthusiasm due to being owed legal fees. “Encourage lawyers in the ministry of justice to grow.” He added.

Justice Umukoro said lack of effective collaboration by prosecuting and law enforcement agencies, poor capacity of many justice delivery institutions, and insufficient legal framework which results in operation of outmoded mandates, were some of the challenges faced by the criminal justice system.

He said prisons were ill-equipped, with no vehicles or funds to service them. For instance, he said the prison in Warri was built for 307 inmates, but currently has 1007; while the one in Ogwasi-Ukwu, designed for 160, houses 770 inmates.

Justice Umukoro attributed prison congestion to little use being made of ACJA’s correctional provisions, inadequate awareness of the law and poor accountability.

A judge of the Abia State High Court, Justice C. K, Nwankwo, said judges were not only overworked, they lacked facilities to make their work easier.

“Judges write in longhand,” he said, noting that it was one of the known major causes of delays has not been addressed for years. According to him, the problems were well known, but there had been no will to solve them.

He added that the number of judges available were inadequate compared to the cases on a typical docket.

 Our handicaps, by IGP

Idris described the ACJA as revolutionary, noting that many of its provisions required implementation by the police. They include prohibition of arrest in lieu of another, record of arrests, mandatory quarterly reports to the Attorney-General and detention time limits, among others.

He said he had directed his men to ensure the Act’s full implementation, adding that the police had begun constructing modern data base in Abuja with back-ups in Lagos and the six geo-political zones for effective transmission and storage of data.

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Idris, represented by a Commissioner of Police in charge of Legal Services, David Igbodo, said he was confident that the initial challenges experienced in the Act’s implementation would be addressed.

“For instance, the issue of recording confessional statements in a retrievable video compact disc has some problems. The Police operations cover all nook and crannies of the Federation and some of those areas have no electricity to power devices required to record confessional statements.

“There is also the lack of the equipment needed to store data in most police formations and record confessional statements but when the data base project is completed, the equipment would be supplied to all police stations and area commands across the country,” he said.

The IGP called for new prisons. He said there were 244 colonial built prisons with a capacity for 50,000 inmates, which he said was “grossly inadequate” considering the level of crime.

“The Police are working hard to contain the situation and are making arrests on a daily basis yet new prisons are not built to accommodate them, except Akwa Ibom State. This is not appropriate considering the population and crime wave in the country,” he said

Idris said law to establish the Police Trust Fund was at its final stages in the National Assembly, adding that with better funding, the Police “will have enough fund to migrate from analogue operations to technology based policing.”

 Are special courts the answer?

The session on special courts featured speeches by Magu, represented by EFCC Head of Legal Gbolahan Latona and Prof Owasanoye, represented by Research Officer at PACAC Dr Fatima Waziri-Azi.

Magu believes that creating special courts would strengthen judicial integrity and the rule of law, enhance judicial efficiency and independence, and promote quick determination of corruption cases.

He said while the creation of a specialised anti-corruption court would positively impact the war against corruption, as well as economic and financial crimes, there were issues that must not be overlooked.

“What would be the jurisdiction of the anti-corruption court? What would be its nature and objectives? Depending on the model adopted, should different procedures be adopted for the anti-corruption courts compared to similar criminal cases in regular courts?

“Where do you place the anti-corruption court in the judicial hierarchy? What should be the relationship between the specialised anti-corruption court and Anti-Corruption Agencies (ACAs)? Should special provisions be made for the selection, removal, or working conditions of the anti-corruption court judges?

“How would the courts be funded bearing in mind the peculiar nature of anti-corruption cases? How will the creation of anti-corruption courts impact on cases on appeal? For instance if the creation of the court results in speedy dispensation of corruption cases, would there be a backlog on the court of appeal as is the case with Uganda?” Magu asked.

According to him, merely having special courts may not solve all the problems without stakeholder support.

“It is clear that there are many challenges faced in the investigation and prosecution of corruption related cases in Nigeria. So it is apparent that creation of special anti-corruption courts cannot be a silver bullet that will automatically handle the issue of corruption, economic and financial crimes in the nation.

“We must as a people change our attitude to corruption and it certainly cannot be left in only the hands of either the Anti-Corruption Agencies (ACAs) or the courts. Everyone in the society is negatively impacted by corruption and we as a people must rise up and scorn it.

“Lawyers as social engineers have a pivotal role to play in the battle. I look forward to the emergence of vibrant and viable anti-corruption activists which will cut across different strata of our society, to lend their voice and efforts in this wise.

“Although the creation of specialised anti-corruption courts alone may not rescue the fight against corruption related crimes, it is certainly a giant step in the right direction of curbing corruption related offences in Nigeria,” he said.

Prof Owasanoye said PACAC on behalf of the Federal Government submitted a Bill for the Establishment of Special Crimes Court to the National Assembly last year. He said it would be a superior court of record to allow for speedy trials of certain offences, such as those bordering on economic and financial crimes, money laundering, narcotics, among others.

According to him, the special court system must go hand in hand with broader judicial reform, which was why a Committee on the implementation of directives on designated corruption courts was constituted, with representatives from the Federal Ministry of Justice, PACAC, Office of the Vice President and Office of the CJN.

Like Magu, Prof Owasanoye said it would take more than special courts to solve all the problems.

“Corruption has increasingly become complicated and difficult to handle, and the fight against it is a continuous process. nonetheless, the success of a special court would depend on several critical factors like resources devoted to the courts, judicial capacity, availability of the required infrastructural support, and strict application of the relevant law and statutes, especially the ACJA.

“As such, all key stakeholders including judges, lawyers and prosecutors would have to support and work towards its success. A special court should not be seen as the ultimate solution, but as a likely catalyst for a broader, more systemic anti-corruption reform,” Owasanoye said.

Yakubu also called for the establishment of an electoral offences commission to reduce electoral impunity.

Represented by a National Commissioner and Head of Legal May Agbamuche-Mbu, he said most electoral offences were poorly investigated by the Police.

“Recommendations have been made by INEC itself and other stakeholders for an independent body to be established to handle prosecution of electoral offences with such powers as conferred on the EFCC and ICPC to arrest, investigate and prosecute electoral offenders,” he said.

Yakubu said a Bill for an Act to Establish the National Electoral Offences Commission was being considered by the National Assembly.’

“The creation of the National Electoral Offences Commission conferred with powers to arrest, investigate and prosecute all election offenders will go a long way in reducing the spate of brazen impunity with which electoral offences are committed in this country.

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“It is envisaged that the bill when eventually passed into law, will ensure speedy and effective prosecution of electoral offenders and strengthen our electoral process, particularly the conduct of peaceful, credible, transparent free and fair elections consistent with international standards and best practices,” he said.

However, a discussant in the session on special courts, Chief Mike Ozekhome (SAN) said Nigerian did not need a special court, arguing that it would not solve the problem as far as the fight against corruption was concerned.

“For instance, it is the same lawyers for whom the anti-graft agencies are crying foul as frustrating cases by frivolous applications that will still appear in the special courts. Their prosecutors will be the same. The rules of evidence have not changed and constitutional issues such as fair hearing remain sacrosanct.

“It is, therefore, advised that the government and the ant-corruption agencies should deemphasise sheer speed and put more emphasis on proper conduct of cases of corruption, economic and financial crimes, and eventually securing conviction. It is posited that what Nigeria needs is to be honest in the fight against corruption, not hypocrisy and grandstanding, not drama and puffing.

“The anti-graft agencies need to train their staff that undertake the investigation and prosecution of these cases to be able to match up the expertise of the counsel appearing for the defence. There is the need for the government to drop the attitude of vindictiveness and selectivity in the fight against corruption, which has always been the case in Nigeria,” Ozekhome said.

According to him, until the government decides to take the bull by the horns by pursuing cases diligently and honestly, no matter who is involved, the fight against corruption, economic and financial crimes would not make a headway.

He said: “The government will only win the heart of Nigerians and get them to support this fight by convincing the citizens that the fight is genuine, total, all-encompassing and that there are no sacred cows as far as the fight is concerned.

“The anti-corruption agencies should drop the habit of blaming their loss of cases on the judges and defence counsel, and ensure that in handling their cases from the point of investigation to the prosecution in court, diligence, and good professionalism are showcased.

“This is so because no judge, special or general, will go fishing for evidence to convict a person where no credible evidence has been placed before him. More emphasis should, therefore, be on proper handling of these cases by well trained professionals, than on achieving sheer speed, as success in the fight cannot be measured just by speedy trial, assuming but not conceding that special courts will guarantee speed.”

Breakout sessions

A Senior Advocate of Nigeria (SAN) Chike Onyemenam, who spoke on Disclosure protocols under ACJA, noted that the Act does not make provisions for remedy for illegal detention.

He added that the ACJA ought to provide for a motion to discharge an ex-parte order, which prosecuting agencies obtain to detain suspects. To him, such ex-parte orders could be based on misrepresentation of facts.

Onyemenam suggested such motion to detain suspects could be on notice to give the other party a right of reply. For instance, he said people have been arrested and detained despite court orders stopping their arrests. Usually the courts who make ex-parte orders are helpless when such restraining orders are brought to their attention.

According to him, although the ACJA permits the prosecuting agency obtain additional detaining order for 14 days after the initial 28 days had expired, 56 days was still a long time to keep a suspect in detention, even if it is considered an improvement.

“If a person is later found to be innocent after having been detained for 56 days, what will be the remedy? There is no provision for remedy for illegal remand. So, I’ll suggest that once the first 28 days has pass and there is no action, the judge should discharge the detainee,” he said.

Legal Defence and Assistance Project (LEDAP) National Coordinator Chino Obiagwu noted that if the provision on video recording is well implemented, the issue of statement denials and trial within trials would reduce.

According to him, several provisions of the ACJA are hardly complied with. For instance, Section 15 requires that the Police must maintain a central criminal records registry, while Section 33 requires police stations to make a monthly report to the nearest magistrate on cases of all suspects arrested without warrant.

Section 34, he noted, provides that the Chief Magistrate or any other magistrate must inspect police stations or other places of detention with his jurisdiction at least every month.

“The level of compliance has been less than zero, if there is anything like that,” Obiagwu said.

He urged lawyers to challenge the practice of filing charges under repealed Criminal Procedure Act.

Speaking at the session on ACJA and interlocutory proceedings, Mr Jibrin Okutepa (SAN) said it would take all stakeholders, including the political class, to make the law work. He said judges must do justice without fear or favour despite interferences.

“Our judges are not free to take bold decisions. Some visit judges ‘nicodemously’ and tell them that a person in detention must not be allowed to go home. I can say it on my honour that I have not visited anyone and do not intend to. But how many of us would have a case and have not gone to see Judge A or B to say: ‘Deal with this person for me this way.’ Can we all collectively agree to allow the ACJA to work?

“Can judges also allow the law to work? There are ways judges can also invite lawyers without coming our directly. Some of them will say: ‘We have not seen you.’ How do you want to see me? My take is that we need to be born again, both from the Bench and at the Bar. Otherwise this ACJA will remain a mere good piece of legislation to be operated by bad people.

“If judges take bold decisions that are against the powers that be, and there are sanctions, they no longer return to the Bar to practice. They are suffer economic death sentence. So, we have a problem which is attitudinal. Government is not allowing the judiciary to be free.

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“One Attorney-General confessed to me that they do some unusual things. let us say it, because if you know your disease, you will look for appropriate drugs, and the drug is that we should allow our judicial officers to work, lawyers should do their work.”

Policy makers speak

Justice Onnoghen, represented by the National Judicial Institute (NJI) Administrator, Justice Rosaline Bozimo (rtd), said the judiciary under his leadership was committed to creating a better future.

He said the Corruption and Financial Crimes Cases Trial Monitoring Committee (COTRIMO) and the designation of courts to handle only corruption cases were steps to ensure speedier determination of cases.

He said to further reduce delays at the Supreme Court, there would be no more manual filing of court processes as from July 16. All communication between lawyers and the court would be done electronically.

Justice Onnoghen said: “In a bid to enhance justice administration and provide our citizens with the justice system that they deserve, the manual forms of communication within Nigerian courts will soon be phased out. Henceforth, lawyers who have acquired the legal email can now communicate electronically with the courts.

“The Supreme Court will only serve processes by electronic means (legal mail) on all matters. This will become effective on the 16th of July 2018 and mandatory. All new filings as from 16th July 2018 must bear counsel’s legal email address.”

Justice Onnoghen reiterated the need for the judiciary’s independence, saying: “It is quite often said that the litmus test to find out how free and democratic any nation is, is to look at its judiciary to find out what powers the nation is prepared to concede to this vital partner in governance.

“The funding of the judiciary is crucial and is the most important index for assessing its independence. The issue of adequate funding at the state level is one of the greatest challenges confronting the judiciary in this nation. It is imperative that applicable provisions of the 1999 Constitution be duly amended to solve the problem of state judiciaries.

“Perhaps it should be included in the proposed amendment that funds due to the state judiciaries should be deducted from source when the state receives the monthly allocations from the federation account and be paid directly to the state judiciaries. This bold step if implemented will go way in enhancing the administration of criminal justice in Nigeria.”

Senator Saraki, represented by Prof Nuhu Jamo, said the problem of prison congestion and other ills affecting the justice system must be addressed.

“The figure of 240 holding facilities in the country points to a legal system that has long been neglected and in need of adequate attention. Similarly, the 66 per cent figure representing the inmates awaiting trial supports the call for special courts that would help speed up the process, as relevant.

“The problems of congestion of prisons, unhealthy living conditions, lagging rehabilitative process, juvenile policy, trial waiting periods, investigative processes and overall credibility of the process are all strong factors that we must address if we are to meet a global standard of humane prison system, and an unbiased, incorruptible legal process,” he said.

He reiterated the lawmakers’ commitment to criminal justice sector reforms, which he said were needed for “an improved and more humane system”. “Let me reiterate the commitment of the National Assembly to the positive ideals of the criminal justice reforms,” he said.

Attorney-General of the Federation (AGF) Abubakar Malami (SAN), represented by Dr Sylvester Imanogbe, said the ACJA’s enactment marked watershed in Nigeria’s criminal justice system, which he said was a work in progress. He promised to implement recommendations made at conference.

 NBA’s role

NBA President Abubakar Mahmoud (SAN) said the association recognised that an effective criminal justice system was central to the maintenance of the rule of law and socio-economic development.

“As we all know, the institutions of criminal justice have functioned at sub-optimal levels. Delays have become prevalent. Our prisons have become congested. Generally, the system has become ineffective in responding to rising criminality and the rapidly evolving nature of new forms of criminal activities.

“To avert further loss of confidence of the ordinary people it the criminal justice institutions, reforms became both urgent and imperative. To stave-off further decline and loss of confidence, there was an urgent need to develop strategic responses to these challenges.

“We needed to correct the dysfunctional institutional matrix of criminal justice administration and reform its substantive and procedural laws,” he said.

Among other initiatives aimed at reforming the criminal justice sector, he said the NBA has scaled up its advocacy for ACJA’s adoption and effective implementation across Nigeria.

“In support of our advocacy efforts, the NBA received the most significant project grant in the association’s history: the sum of $1, 800, 000 from the John. D and Catherine T, MacArthur Foundation in 2017, for a three-year advocacy project which focuses on the ‘Promotion of the Domestication and Implementation of the ACJ Legislation across Nigeria’.

“The NBA-ACJA project is currently being implemented in nine states across the six geo-political zones of the country. Phase 1 of the project covers Akwa Ibom, Bauchi, Adamawa, Ogun, Jigawa, Kano, Kogi, Bayelsa and Edo states,” Mahmoud said.

According to him, the project scope covers legislative advocacy and technical support to state legislatures, among others.

He said it was in furtherance of the NBA’s activities in criminal justice reforms that it constituted the Criminal Justice Reform Committee last year.

The committee’s chairman, Chief Arthur Obi Okafor (SAN), said the criminal justice system was still weak despite the ACJA’s coming into force.

“There is an apparent lack of political will and resources to implement the ACJA. Many states are reluctant to domesticate and enact the ACJA,” he said.

According to him, correctional agencies have become obsolete and need to be upgraded and strengthened, while there was the need for proper engagement and advocacy on institutional responsibilities as imposed by the law.

To download the papers go to https://www.nba-cjrc.org/2018/04/26/download-cjr-conference-papers/

Reported by JOSEPH JIBUEZE
The Nation

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