Olawale Fapohunda
15 August 2005
opinion
Lagos — Can I start from the obvious by saying that the Administration of Justice System inherited from several years of military rule poses serious challenges for democracy in Nigeria. The Administration of Criminal Justice Bill 2005 is a recognition that the old framework for justice and the laws of Nigeria have to be transformed to reflect the Constitution but specifically the demands of a democratic society.
In general, the Nigerian Criminal Justice System has frequently been described as ineffective, unjust and repressive. Specifically, the perception of the police force is that of a corrupt, repressive and ineffective institution. Poorly paid inadequately motivated officials staff the prisons. Judicial officers particularly of the lower court are generally overworked, underpaid and lack the necessary infrastructure and equipment to enable them work efficiently. In addition many of the systems and processes inherited by the Ministries of Justice have largely led to inefficiency and ineffectiveness.
Transformation of the criminal justice system in Nigeria is therefore essential in bringing about legitimacy, accountability and efficiency, while at the same time striving to reduce the levels of crime and enhance stability and security.
The reform of our criminal justice system should be based on a vision that gives every person fair and equal access to justice, and at the same time guarantees the dignity, rights and security of every person, and of all communities, regardless of ethnic group, gender, money or any other difference.
My first comment on the Bill relates to the issue of Victims of Crime. We frequently criticise the criminal justice system for the way it treats victims of crime, especially when they are women and children. We say that the justice system has marginalized victims and that it does not respond to their needs because we are too preoccupied with offenders. I support the recommendation for victim compensation. However we need to create a framework, not only for victim compensation, but also victim empowerment. Specifically there is the need to:
improve the access of disempowered groups to the criminal system, including women, children and victims in general;
redesign the criminal justice system to empower victims;
provide a greater and more meaningful role for victims in the criminal justice system;
improve the service delivered by the criminal justice process to victims of crime; and
deal with the damage caused by criminal acts by providing remedial interventions for victims.
In developing this framework we should be guided by needs assessments and by overseas experiences with restitution and victim offender reconciliation.
My second comment relates to Witnesses in criminal cases. It is trite that cases cannot be tried properly without witnesses. At present a key challenge in criminal trials in Nigeria is the absence of witnesses. Witnesses are reluctant to come to court either because they are afraid of being victimised by the alleged criminals or because they have very little confidence in the criminal justice system. We need to make sure that our witnesses are safe at court proceedings, so that justice can be done swiftly. The criminal justice system is like a chain whose strength is as good as its weakest link. It seems to me that lack of witness protection is often the weak link.
On sentencing and Imprisonment. Any one who has visited any of our prisons particularly those in our major cities will agree that the Nigerian prison system is an extreme symptom of a chronic illness afflicting our criminal justice system: simply put it suffers from a basic lack of humanity. Our prisons have over the years been a source of concern due to overcrowding. This has frequently led to poor health conditions including frequent outbreaks of epidemic.
It is my view that a humane system of imprisonment would aim to imprison only those individuals who cannot be dealt with by any other means. Presently there are 40,000 inmates in Nigerian prisons 25, 000 of who are awaiting trial inmates and more than 5,000 who have spent more than 10 years awaiting trial.
I commend the effort to review statutory criteria relating to sentencing. Prison sentences should only be applied when it is necessary to protect the public from serious harm or when the
offence is so serious that only a custodial sentence is justified. Also our judicial officers need to avail themselves of sustainable alternatives to Prison.
My fourth comment relates to the issue of elimination of delays in Criminal Trials. No one can deny that there is an urgent need to eliminate delays in disposing criminal cases. Aspects which should be debated with respect to delays are: the excessive caseloads carried by the courts and the failure to progress cases sufficiently by the respective role players-lawyers and courts. It seems to me that we need to further explore the possibility of simplifying criminal procedure with particular reference to the following questions:
Whether the existing provisions relating to the procedure of pleading are unnecessarily cumbersome and or whether they give rise to abuse.
Whether objections and arguments with regard to the charge, further particulars and jurisdiction which unduly delay the commencement of the trial on the merits could be countered or limited.
Whether the powers of judicial officers to curtail irrelevant or unduly protracted cross- examination and testimony should be extended.
Whether judicial officers should be empowered to call a pre-trial conference between the state and the defence
Whether judicial officers should be empowered to order a trial within a trial with regard to a particular fact in dispute before the actual trial proceeds.
On the question of Capital Punishment I respectfully disagree with the inclusion of capital punishment in the administration of criminal justice bill. My disagreement is predicated on the reasoning that "A
system that would take a life must first give justice." The Federal government can not reasonably ignore the systemic problems that exist in our criminal justice system. These problems have been exacerbated by limited funding of criminal justice agencies, inadequate training of personnel and inadequate legal aid scheme. We need to achieve a regime under which the Nigerian Criminal Justice System can ensure fundamental fairness and due process in capital cases and minimize the risk that innocent people will be executed. Indeed one of the most intractable problems in death penalty administration in Nigeria is the severe lack of competent and adequately compensated counsel for indigent defendants and death row inmates seeking appeals. The limited funding and mandate of the legal aid scheme has seriously undermined the support system for lawyers taking these complex and demanding cases. As a result, the shortage of competent lawyers for persons facing capital punishment offences has never been greater. The direct consequence of this is the fact that inmates who are on death row in Nigeria's prisons are almost exclusively poor and without legal representation.
In conclusion I would like to comment on the issue of Funding Administration of criminal Justice which goes hand in hand with the need for government to prioritise the justice sector. I am of the view that the Federal Government and many of our state governments need to rethink their current investment in the justice sector and to decide whether it is adequate or not.
A reoccurring phenomena across Nigeria is that funds allocated to the Justice Sector is inadequate to meet the nature of transformation that is required. This is particularly troubling because a good justice system lies at the heart of any democratic society. It is a matter of concern that most of the current justice sector reform initiatives are funded by international donor organisations.
It must be stressed that while external support is helpful, the basic responsibility for reforms rests with government and its domestic institutions. The importance of this point cannot be overemphasised. Support for Justice sector reform will fall short of its goal without local ownership. Indeed external support can and should only be complimentary to Government efforts.
Mr. Fapohunda is Managing Partner,Legal Resources Consortium
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