Prison Decongestion: The Powers of the CJN and Chief Judges – Chidera Nwokeke


Prisons are public correctional institutions established by government where inmates, both suspects and convicts are detained.  It is common knowledge that virtually all the prisons nationwide are overflowing with inmates, both those convicted and those awaiting trials.  As at 25th February, 2019, the Nigerian Prisons had population of 71,711 out of which 51,120 are awaiting trial.  The issue of prison congestion is worrisome, despicable, abject and a burden to all concerned citizens.

Dismally, due to the barefaced lapses in the system, the prison system which is supposed to be reformatory has eventually turned to punitive and hell to inmates, thereby defeating the true essence of sending convicts to prisons.  The implication of this antipode system of prison administration is that the inmates in our prisons come out more criminally minded than they were before conviction.

The causes of the congestion of prisons are not implausible or far-fetched. They include the mode of running of prisons in the country, which is essentially a federal government affair. The slow pace of Justice dispensation in the country which is attributable to long and mischievous adjournment of cases which has led to unnecessary delay and sometimes total abandonment of the inmates in prisons.

Also, the police has contributed in no small measure to this hardship with the slow investigation process they adopt and holding of charges which is now a norm at Magistrate court.

It is not enough for Nigerians to continue to pay lip service to the issues of prison decongestion when in actual sense, there are several practical ways of proffering permanent solution to prison decongestion. Two of these practical solutions are the main focus of this write-up, viz:

  1. The Exercise of the powers of the Chief Justice of Nigeria (CJN) and the Chief Judges (CJs) of States.
  1. Inclusion of the Prison Decongestion Decree No. 18 1993 to the Laws of the Federation.
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Power of Release by the CJN and CJs

The powers of the CJN and CJs  to release persons remanded in prisons custody is provided for in our laws.  By virtue of Section 11 of Prisons Act (Cap 29) LFN, 2004, the CJs and the CJN are categorized among Prison Visitors ex-officio.  The section provides:

  1. (1) The following shall be prison visitors ex officio-

(a) in relation to all prisons, the Chief Justice of Nigeria and the other Justices of the Supreme Court; and

(b) in relation to prisons in their areas of jurisdiction- (i) the President (however styled) and the other Justices of the Court of Appeal; (ii) the Chief Judge and other Judges of the Federal High Court; (iii) the Chief Judge and other Judges of the High Court of each State; (iv) the Grand Kadi, the Acting Grand Kadi and other Judges of the Sharia Court of Appeal exercising jurisdiction in a State; (v) magistrates, district judges, alkali and presidents of area courts; and (vi) justices of the peace.

While the Chief Justice and Chief Judges are empowered by Section 1 of Criminal Justice (Release from Custody) Special Provisions Act, Cap 79, 1990 hereinafter called (CJRCSP ACT) to order the release of any person, if they are satisfied that the detention of that person is manifestly unlawful or where the person has been detained for period longer than the maximum period of imprisonment for the alleged offence.  The Section provides:

  1. (1) Where, in respect of any person detained in any prison in Nigeria, not being a person detained in execution of a sentence of a court or tribunal duly constituted by law, the Chief Justice of Nigeria or the Chief Judge of a State is satisfied that the-

(a) detention of that person is manifestly unlawful; or

(b) person detained has been in custody, whether on remand or otherwise, for a period longer than the maximum period of imprisonment which the person detained could have served had he been convicted of the offence in respect of which he was detained,

the Chief Justice or the Chief Judge may issue an order of release to the officer in charge of the prison and such officer shall on receipt of the order release the person named therein.

In the face of the above provisions, it is therefore worrisome that in Nigerian Prisons, there are thousands of inmates who have been in custody without trial and conviction for periods over and above the maximum period they ought to have spent should the court had convicted them.

The beauty of the above provision is that the draftsmen with the clear intention of ensuring that the implementation does not offend the provisions of Section 175 and 212 of 1999 Constitution which conferred power only on the President and Governors respectively to grant pardon used the word “Release”.

The implication of the provision of Section 1(1) CJRCSP ACT is that the CJN and CJs can only exercise the power of release over persons that are not serving any sentence of court to enable them attend trial from outside the prison custody. The legal effect of the exercise of this  power includes

  1. Preservation of the right to liberty.
  1. It does not stop the Court proceedings.
  1. It does not stop further re-arrest, because it is just a discharge from illegal detention.

A judicious exercise of the above power would ensure that persons who have been in prison custody for an unusually prolonged period of time would be released. This would in turn decongest the prison.

Revisiting the Prison Decongestion Decree NO. 18, 1993

Another pivotal way to decongest the prison is that the PRISON DECONGESTION DECREE NO. 18, 1993 should be revisited. It will serve as a useful tool to decongest the prisons.  This decree gave power to the members of the Task Force to visit prisons all over Nigeria, to spot check and release the following categories of prisoners awaiting trials.

  1. Cases of Stealing where the accused have spent above three months in custody.
  2. Cases of robbery where the accused have spent above 3 months in custody except armed robbery with violence and cases before the Armed Robbery Tribunal.
  3. Cases of assault which have spent up to 1 month and above in custody.
  4.  In other categories of offences other than armed robbery, murder and rape.

A succinct and laconic explanation has shown that the CJRCSP ACT conferred express powers on the CJN and CJs to release persons detained in prison.  Also the Prison Decongestion Decree have certain provisions, if brought to our current laws will facilitate and lead to prison Decongestion.  I humbly submit that the CJN and CJs should try and visit the prisons at least once in 2 months to exercise this their powers and the National Assembly should make this decree a Law.



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