On December 21, Justice Muftau Olokooba of Lagos High Court discharged and acquitted Major Hamzat Al-Mustapha, Mr. James Danbaba, Lt. Col Jubrin Bala Yakubu and Mr. Rabo on a case of conspiracy in the attempted murder of Chief Alex Ibru, publisher of Guardian Newspapers.

Al-Mustapha

In dismissing the charges, Justice Olokooba described the evidence presented agasint them as “worthless” and chided the prosecution for failing to establish a prima facie case. It took more than 11 years to reach this conclusion, during which all the accused have been in pre-trial detention.

As unacceptable as this is, it is, however, far from a peculiar story. In many ways, it is routine. According to figures released by the Comptroller-General of Prisons, about 77% of the population of Nigeria’s prisons await uncertain trial in Nigeria. Unlike Al-Mustapha, a majority of these detainees awaiting trial cannot afford to pay a lawyer. In the absence of state-provided legal aid and assistance, many will remain in prison custody. In 2005, the average duration of pre-trial detention was three years and seven months. In 2010, it is a little over five years. As grim as this narrative reads, the situation is entirely reversible.

The standard policing practice in Nigeria is to arrest suspects before investigation begin. Thereafter, most states authorize magistrates to remand these suspects in prison pending conclusion of investigations and arraignment before appropriate courts, usually high courts.

However, the police lack the capacities to undertake investigations professionally and detention is often an ill-disguised first step in a well established extortion or torture routine. The Magistrates who are authorized to make these orders are, however, denied trial jurisdiction for these offences. This arrangement supposedly serves the purpose of preventing criminal suspects from interfering with investigations or obstructing the cause of justice. In reality, this hardly differs from administrative detention. The net result is that investigations continue interminably while suspects waste in the prisons.

Even when they manage to conclude investigations and report to the Ministries of Justice for advice, the advice takes a lot of time to come. Although most crimes are State crimes, the Attorneys-General who are Chief Law Officers of their respective States, do not have much control over what the Police does nor are they able to significantly affect what happens in the prisons. Both are federal institutions.

A reform of this state of affairs is both necessary and possible. For a start, we can easily manage more effectively the inflow of suspects into the criminal justice system. As the criminal process begins upon arrest, the police station is an important venue to target. Beginning in 2004, Rights Enforcement and Public Law Centre, REPLACE and Legal Aid Council of Nigeria, LACON,  pioneered a Police Duty Solicitors Scheme, PDSS, in Nigeria.

The scheme is premised on the proposition that access to legal advice and representation upon arrest is critical to reducing the major pathologies of pre-trial justice in Nigeria, characterized as it is by prolonged pre-trial detention, torture, extrajudicial killings and extortion. Consequently, the scheme aims to provide access to legal advise and representation within the first 48 hours of arrest to criminal suspects in selected police stations in Imo, Ondo, Kaduna and Sokoto states.

The result has been impressive in terms of number of persons diverted from the criminal justice system, as a result of which many more States, including Delta, Edo, and Kebbi States, among others, are now exploring ways to establish similar schemes. However, we need to increase depth and improve participation by all stakeholders to ensure sustainability.

Reform of remand laws and criminal procedure in the States is also imperative. These legislations must impose time-limits on length of incarceration pending conclusion of investigations. It is clearly unacceptable to await the advice of the Director of Public Prosecutions for one year or more or to hold a detainee for over 10 years only to discover that the case against them is “worthless” or, indeed, that there is no file on the case.

In addition to imposing time-limits, these legislations must make prosecuting and detaining authorities responsible for ensuring suspects are produced in court on assigned dates. Lagos State has taken a lead in this by revising its criminal procedure law to create a legal limit of 60 days. However, it must go beyond this to monitor actual implementation of this law and ensure its effective application.

States Chief Judges may also provide leadership pending review of remand laws by issuing Practice Directions providing magistrates with greater control over remand. For example, a provision directing magistrates to insert return dates on remand warrants will help. States with Practice Directions must monitor and evaluate implementation at regular intervals to ensure compliance.

States Attorneys-General must take control of the criminal process in their states. Although, it is clear that states and federal institutions intersect in providing (in)justice in every case, it is critical that the Attorneys-General have a record of movements between courts and the prisons in a systematic fashion so they can take appropriate action in respect of suspects detained for unduly long periods.

Inter-agency cooperation needs to be improved. To this end, the 1991 Administration of Justice Commission Act presents a unique opportunity. It establishes an Administration of Justice Commission for the federation and Administration of Justice Committee for each state with membership from the judiciary, police, ministry of internal affairs, prisons and the bar association.

The principal function of the Commission and committees is to ensure “criminal matters are speedily dealt with” and “effective performance of the functions of all organs charged with responsibility for the administration of justice…” The Commission for the federation and Committees at State levels should be inaugurated without delay.

There are many more suspects who, like Al-Mustapha and his comrades, have spent considerable time behind bars awaiting justice.

For those of them who can afford lawyers, Al-Mustapha’s case might be inspiring. For those without means, the state and all stakeholders must inspire some confidence by taking proactive steps to ensure speedy trials. To do nothing will expose our society to more safety and security crises than imprisonment was designed to prevent in the first place.

* Stanley Ibe is Associate Legal Officer with the Open Society Justice Initiative. Catherine Fwangchi is Legal Officer with the Rights Enforcement and Public Law Centre, REPLACE,  Abuja.