Why a Piecemeal Approach to Criminal Justice Reform in Nigeria Won’t Work

On the surface, a proposal currently under consideration in Nigeria looks like a step forwards in the struggle to improve the country’s dysfunctional prison and justice systems. An amendment to an existing criminal justice law—Criminal Justice (Release from Custody)(Special Provisions) Act, 2004—could, it seems, free thousands from prison, on the grounds that most of them have spent longer in prison awaiting trial than if they had been convicted on the charge that put them there. 

But I am concerned that an idea that seems to promise a reduction in the country’s excessive pre-trial detention rate may, on the contrary, turn into a potentially damaging distraction from genuine reform. 

Nigeria has a very large problem with excessive pre-trial detention. Currently, an estimated 70 percent of the estimated 45,000 prisoners in our jails are awaiting trial. One in five of that number has been waiting for longer than a year.

The proposal before parliament would require the Comptroller of Prisons to apply to the Chief Justice of Nigeria and chief judges of states for release orders in respect of detainees who are illegally held, or held for an excessive length of time without trial, making fairly certain a rarely-used process already on the books that currently in theory requires the intervention of a chief judge (either federal or state). If it passes into law, some detainees who have been held for excessive periods may get released. But this would just be tinkering with a broken system.

But serious reform needs to start not at the end of the criminal justice process, but at the beginning. We cannot reduce the ever escalating pretrial population unless we reduce the flow of detainees into the system; that requires proper safeguards for arrest and pretrial detention in police custody.

Under Nigeria’s constitution, anyone arrested on suspicion of a crime is presumed innocent. They have the right to counsel, are privileged against self-incrimination, and should appear before a magistrate or other judicial official within 48 hours of arrest. There is a lamentable gap between these ideals and reality.

Take the right to counsel. Research shows that early contact with a lawyer reduces the chances of detainees being tortured or even summarily executed by the police. For many pretrial detainees, access to counsel is an unrealistic dream. They are often too poor to afford the services of a lawyer; the institution primarily responsible for filing this gap—Legal Aid Council of Nigeria—is as under-staffed as it is underfunded. Any serious reform effort must prioritize provision of legal assistance for criminal suspects within the first 48 hours of arrest.

But that alone is not enough. We need to address the systemic issues that complicate the administration of criminal justice in Nigeria, such as the incoherent relationship between the state and federal level judicial systems. This could be done using the 1991 administration of Justice Commission Act, a law that is on the books but has never been properly implemented which called for the chief law officers of the federation and states to create commissions at both levels to regulate their interaction. Institutions in the criminal justice system—whether federal or state—must cooperate to enhance efficiency.

Accountability is also critical. In a sense, the bill now under consideration aims to introduce an element of accountability by encouraging prison comptrollers to regularly report on the number of detainees in the prisons to the chief justice of Nigeria and his state-level counterparts. But again, more is needed. The federal and state attorneys-general also need this information, so they, as the relevant chief law officers, can take appropriate action.

Beyond this, accountability is vital to ensure that justice is being served. Pretrial injustice occurs when police officers arrest without cause, but are never required to explain themselves; when lawyers pervert the course of justice, but face no disciplinary measures; or when magistrates allow pretrial suspects to languish in prolonged detention, but never face censure.

It is ultimately up to our parliament to prevent this kind of injustice. Our politicians need to take seriously the job of overseeing the criminal justice system. They need to support schemes that provide detainees with legal aid. They need to insist that our chief judges enforce limits on the length of pretrial detention. They need to ensure that the state and the federal systems work well together, and that we have the right data on whether our criminal justice system is working or not.

Working together, we can reduce the numbers of pretrial detainees and duration of pretrial detention and enhance public safety and security by doing so.