In 1990, Ernest N. was an 18-year-old living in Ngor-Okpala, Nigeria, with a bright future ahead of him. Then, one day, he was arrested by police and held in jail on suspicion of robbery. The problem was, the alleged victim of the robbery did not exist and there were no witnesses to it. The only facts the police had were Ernest’s statement denying the allegations of robbery. His case never went to trial. Instead, Ernest remained in detention for 18 years.
In 2008, Ernest was finally released following the intervention of lawyers from the Legal Aid Council of Nigeria (LACON) and the non-governmental organization, Rights Enforcement & Public Law Centre (REPLACE). While he was in detention, Ernest’s father and mother died. No one told him. When he came out in 2008, Ernest did not know how to get home. So much had changed while he was unjustly detained. The cruelest irony was that if Ernest had been convicted for the crime of robbery, the sentence would have been a fraction of the years he spent rotting in jail, waiting for a trial that would never happen.
Oliver M.’s experience was not much different. In 1985, the police in Owerri, in southeast Nigeria, arrested Oliver, then 19, on suspicion of murder. No trial ever took place, and, despite the allegation of such a serious crime, he was never charged before a competent court. Rather, he was left to sit in detention, waiting endlessly for his day in court. It never came. Twenty-one years later, in July 2006, Oliver finally regained his freedom as a broken 40-year-old.
Ernest’s and Oliver’s experiences are not isolated. In 2006, the Nigerian Prison Service reported that the average period of pre-trial detention in Nigeria was nearly four years. The population awaiting trial is large and growing. In June 2010, Nigeria’s Interior Minister, Emmanuel Iheanacho, a retired Navy Captain, reported that across the country over 30,000 persons out of the total prison population of nearly 46,000—over 65%—were being held in detention while awaiting trial.
Four factors sustain this state of affairs. First, many victims of lengthy pre-trial detention are poor and therefore unable to afford the three essential “b’s” of the criminal justice system—bribe, bail, and barrister. Second, the allocation of responsibilities among law enforcement institutions is not coordinated. For example, even though most offences are state-created, states’ attorneys general do not have oversight of the police and the prisons. In practice, this means that the attorneys general, as chief law officers, cannot monitor the movement of suspects into and out of detention facilities within the state, and, therefore, cannot ensure compliance with the constitutionally guaranteed right to trial within a reasonable time. Third, the law requires police to investigate complaints and allegations before arrest. Regrettably, the reverse is the case in Nigeria. Finally, criminal procedure laws in most Nigerian states allow police the liberty to secure indefinite pre-trial detention orders from magistrate courts even in respect of charges—such as armed robbery and homicide—over which they do not have trial jurisdiction.
For many caught in the system and awaiting trial, early access to legal advice and representation would have made a difference. Recognizing this, the Open Society Justice Initiative, LACON and REPLACE pioneered a Police Duty Solicitors Scheme (PDSS) in 2004. The scheme, which is being implemented in six states—Imo, Edo, Ondo, Kaduna, Kebbi and Sokoto—places lawyers inside designated police stations on a 24-hour rotational basis to render legal advice and assistance to detainees. Under a Memorandum of Understanding between the Inspector-General of Police, LACON, REPLACE, and the Open Society Justice Initiative, the police has agreed to allow lawyers working under this scheme access to its cells.
The result of this experiment has been dramatic. In 2005, the program’s first full year, the scheme got 1255 people awaiting trial out of detention. The scheme also achieved notable reductions in duration of pre-trial detention in Ondo (30.47%), Imo (88.41%), Kaduna (86.26%) and Sokoto (60.97%).
In 2008 alone, 16 lawyers in these four states had access to 3,200 detainees and suspects, diverting or releasing 2,857 suspects from detention. On the average, each detainee spent seven days in jail—a striking figure, when you consider the national average is 46 months. Increasing the number of participating lawyers and paralegals, as well as the number of participating police stations, could potentially eliminate the likelihood of a repeat of stories like those of Oliver M. and Ernest N.—both of whom were released after becoming clients of the scheme.