In February 2012, nearly 80 percent of Nigeria’s prison population was awaiting trial; nearly a quarter of those detainees had been held for at least one year. For a country of 160 million, having almost 50,000 people locked in 227 prisons might not sound like too much of a problem. However, the unacceptably high proportion of unconvicted persons in prolonged prison confinement is very definitely a cause of concern.
Most of these detainees are held on a “holding charge”—a preliminary charge brought by the police and designed to extract a remand order from a local magistrate’s court, which in turn enables the police to hold a suspect while criminal investigations continue. There are good reasons for this practice. Often, investigations are not completed within the maximum 48 hours of detention allowed under Nigeria’s constitution. The police are undermanned, over-worked and ill-equipped. Crime suspects may interfere with investigations, tamper with evidence or threaten witnesses.
But the actual practice of the holding charge in Nigeria makes a mockery of these reasons. Under the law, suspects may only be admitted to a prison on the orders of a court. But when a magistrate issues a remand order, the warrant does not include a date on which the suspect is to be brought back before the court by the police. Effectively the detainees may be held at the pleasure of the state for indeterminate periods. This explains why many detainees languish in prison for years. Two recent cases illustrate this.
Sikiru Alade was arrested as a 30 year-old in March 2003 and detained awaiting trial on the orders of a Magistrate in Lagos, Nigeria. For over nine years thereafter, Sikiru was detained in a prison without being returned to Court for a trial or review of his detention. In June 2012, the Court of Justice of the Economic Community of West African States (ECOWAS) invalidated his detention and ordered his release, in a case brought on his behalf by the Open Society Justice Initiative. He was finally released in October 2012, nearly 10 years after his initial detention on a holding charge.
Sikiru is not the only victim of this unfortunate travesty of justice. In 1990, Ernest was arrested and remanded on suspicion of involvement in an armed robbery. He was 18. Although the alleged victim of the crime did not exist and there were no witnesses, he remained incarcerated until one of our partners in Nigeria, the Rights Enforcement and Public Law Centre (REPLACE) intervened to secure his release in 2008.
In both cases, as is usual in most criminal cases in Nigeria, the suspects allegedly committed a crime under state laws. The Nigeria Police Force, a federal institution, investigated the crimes. State magistrates courts remanded them in federal prisons. The interface between these federal and state institutions has traditionally been ill-defined. As a result it is all too easy for detainees to fall between the cracks and end up forgotten by the justice system.
This does not have to continue. Nigeria’s 1991 Administration of Justice Commission Act theoretically created both state and national bodies tasked with improving links between the different criminal justice institutions. The national administration of justice commission includes the chief justice, the federal attorney general, the minister of internal affairs, the inspector general of Police, the director of prisons, and the president of the Nigerian Bar Association. Each state committee is similarly constituted by state level officials. The primary mandate of these bodies is the “general supervision of administration of justice,” which extends to ensuring maximum cooperation amongst justice institutions; the reduction of congestion in courts and prisons; and remarkably, ensuring that “persons awaiting trial are, as far as possible, not detained in prison custody.” Regrettably, neither the national commission nor the state committees have ever been established as envisaged under this law.
In an effort to address some of these issues, the Legal Aid Council of Nigeria and the Open Society Justice Initiative launched a project in 2004 aimed at reducing the number of detainees awaiting trial as a proportion of the prison population. It also sought to ensure effective coordination between the Legal Aid Council, the police and prosecutorial authorities with a view to reducing the time it takes for the department of public prosecutions to issue legal advice. Realizing that the police are the gateway into the criminal justice system, the project focused some attention on the police with the establishment of the Police Duty Solicitors Scheme in 2005.
This scheme, developed with the support of the federal police, made available 16 young lawyers (duty solicitors) on compulsory national service in designated police stations across four of Nigeria’s 36 states: Imo, Kaduna, Ondo and Sokoto. Their mission was to offer legal aid and assistance to crime suspects within the first 48 hours of their arrest. The duty solicitors interviewed suspects; they contacted families and lawyers, where available; they applied for police bail on behalf of suspects; and they represented suspects appearing in court on arraignment. In its first year, the scheme resulted in the release of 1,255 people awaiting trial, against a previous annual baseline of 3001 detainees in custody, representing a 41.7 percent decrease in the number in custody. The project also diverted 636 persons away from indefinite pre-trial detention. During its first year the project reduced the number of pretrial detainees by 88.4 percent in Imo; 86.2 percent in Kaduna; 30.5 percent in Ondo; and 61 percent in Sokoto.
The project has now been running for seven years. It has released over 10,000 persons and expanded to two additional states, Edo and Kebbi. Two of the project states—Ondo and Sokoto—now have judicial instructions that limit the length of pre-trial detention to not more than nine months. The project has also attracted external funding from the Macarthur Foundation, which supports two more states, Plateau and Rivers. In 2011, Justice Initiative initiated an external review of the project preparatory to possible takeover by Nigerian authorities.
The review covered the first five years, from 2005 to 2010, and sought to assess the impact of the scheme and to identify continuing challenges. It concluded that the scheme had, among other things, resulted in a significant reduction of influx of minor offenders into the prison system, as well as increased government attention to the problem of pre-trial detention.
The Police Duty Solicitors Scheme is a low-cost but effective tool that focuses on the entry point into the criminal justice system, and that engages with the system through to the point of imprisonment. While the scheme was designed to address needs in Nigeria, the model underlines a broader message: that this kind of administrative innovation can both ease the burdens on an overcrowded justice system, and address the excessive and unnecessary use of pre-trial detention.