(Statement of Emeka Ugwuonye, Esquire, to the attention of members of the Due Process Advocates (DPA)
INTRODUCTION: In 2011, it was published in some Nigerian newspapers that over 90% of the total inmates of all Nigerian prisons were not convicted of any crimes yet. While many of the inmates of Nigerian prisons are undergoing trials while in detention, many others are in various states where there is no active trial going on in their cases. In most of these cases, the accused persons in detention have spent as much time as (or longer than) the maximum jail term prescribed by law for the offences they are charged with.
When I read this in 2011, I thought the story could not be true. But I thought I should investigate a bit. I found out to my greatest shock that the report was indeed true. Over 90% of those in Nigeria’s prisons all over the country are actually innocent. I immediately found that situation intolerable. And I swore to change it.
THE PROBLEM: There is no way the overwhelming majority of prison inmates could be innocent and this country continues as if all is well. As I tried to explore fully the pattern of this abnormality that has clearly grown into a crisis, I discovered a criminal justice system that is dysfunctional and totally broken down. Indeed, there is a huge disaster that has been long overdue.
Many factors led to this situation. First, there is a highly corrupt police authority, which harbors policemen that focus on bribes and various forms of corrupt enrichment in the processing of criminal cases in matters such as arrests, detentions, charging of suspects and even prosecution of criminal cases. Second, there is a court system that is dysfunctional and which has some corrupt and incompetent judges and other court officials who lack the rigor and professional commitment it takes to process cases in an efficient manner. Third, you have a perennial shortage of resources and funding that would have been needed to equip the courts and adequately staff them to ensure speedy and efficient dispensation of justice. The Government of Nigeria and the States fail to make sufficient budgetary allocations for the efficient running of the courts. As a result, the courts lack basic amenities that they need to function even minimally.
In addition to the above causes, you have incomplete and outdated laws and rules relating to the administration of justice. These laws are not adequately modernized to ensure a smooth and efficient court process. These rules in the books impose extreme impediments for those caught in the webs of our criminal justice. An obvious example is the constant, but unjustified, position of most Nigerian judges that demand a written bail application in criminal cases. Even though a bail application can be made orally in an open court, most Nigerian judges these days insist on a written bail application. And the law had remained equivocal on the issue. Once a judge demands a written bail application, that could easily cause a suspect to spend two months in detention before the bail application is disposed of.
Another factor that speaks to judicial incompetence is the tendency of the judges to take long adjournments to rule on bail applications. Even though these applications are routine and the legal issues involved are relatively straightforward and the factual issues are easy to determine, it is common for Nigerian judges to adjourn for weeks and months just to rule on a bail application that has been argued before them. During the period of such adjournments the accused remains in custody without trial. There is also the astonishing tendency by Nigerian judges to deny bail on flimsy excuses. The most common excuse given for denying bail comes in form of a promise by the judge to endure a speedy trial. However, the so-called speedy trials take years to complete.
The crisis is further compounded by the existence of a weak and highly disorganized and undisciplined bar. The Nigerian bar groups have repeatedly failed to rise as a body to challenge the nasty situation where 90% of the people in prison (many of whom are their clients) remain in prison for years while awaiting trial even for minor offences. The failure of the Nigerian Bar Associations, as a body, to address this crisis in any meaningful way sticks out as an open wound in the organization’s development.
THE CHALLENGE AND A PROGRAM FOR ACTION: As this crisis built up, Nigeria has no meaningful way to redress it, either by reforming the criminal justice system to reduce the inflow of suspects and accused persons into the category of those trapped in prison for years awaiting trial; or to find a way for providing speedy trials for the cases of inmates awaiting trial in the prisons. What has happened over the years is the token gesture of the few prisoners pardoned by the President or Governors each festivity period. The problem with such feeble gestures is that it only applies to convicted prisoners, who are very few in number, rather than to the most deserving of freedom – the unconvicted and the yet-to-be-tried prisoners.
The most troubling of the solutions to getting these people out of detention has been the EFCC’s questionable and bizarre program of plea-bargaining. By a collusion of the EFCC and some courts, accused person who have been denied bail and left to spend as much time in jail as if they were convicted and had received the maximum sentence, were placed in the position where they had to choose between the opportunity to defend the charges leveled against them or to plead guilty for offences they did not commit, just for them to be able to get out of prison. And without such a desperate option, an accused person could serve double the length of time prescribed for the offense he denies committing. Even the plea bargain process is too tedious and clumsily executed such that it would never be a meaningful solution to our dangerous prison statistics.
OPERATION HOPE FOR JUSTICE: Operation Hope For Justice is the best first way out of the crisis. This is a project under which ECULAW GROUP and the Due Process Advocates group are collaborating to file a class action type lawsuits in Nigerian courts seeking to use the Constitution as a premise to seek freedom enmass for those prisoners who have been awaiting trial longer than one year.
Preparations for this class action lawsuit are underway and advancing rapidly. It will involve a team of lawyers, mostly volunteers, to be led by me or whoever is the most senior lawyer in the team. The Project is to be managed by the Project Administrator, who shall be a retired judge. (A retired Supreme Court Judge has volunteered to perform the task of the Project Administrator). The class action lawsuit shall have as defendants the Federal Government of Nigeria, the Federal Attorney General, the 36 State Governments and State Attorney-Generals. The core constitutional principle under which this action is being initiated are the Constitutional right to speedy trial as well as the right to the presumption of innocence. Other rights such as right to liberty, right against inhuman and degrading treatment, and fair hearing will all be invoked. All the hundreds of thousands of Nigerian prison inmates in long detentions without trial or while awaiting trial have been denied those constitutional rights.
Operation Hope for Justice shall be seeking the following remedies: (i) immediate release on bail of every prisoner whose has trial has not concluded within 12 months of his arrest, (ii) immediate discharge and acquittal of all those who have stayed in detention longer than the maximum jail term for the offences they were charged with, (iii) monetary compensation for each affected prisoner, (iv) training of each affected prisoner for job-related skills comparable to the training given to the Niger Delta militants and that which is planned for other beneficiaries of government amnesties, and (v) for those who were forced into plea-bargains due to long detentions in prison, they would be seeking to quash any criminal convictions associated with such plea bargains.
This class action lawsuit is expected to be filed in June of this year at the Federal High Court located either in Lagos or Abuja.
CONCLUSION: Nigeria would never be a good country worthy of the name until it begins to treat its citizens suspected of committing crimes with some measure of human dignity. To lock up people and deny them access to justice merely on the basis of suspicion constitutes the worst form of inhuman and degrading treatment. For the dignity of this country and its peoples, this project is intended to elevate our collective humanity and promote justice in places where it has been suppressed.
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