What is needed for custodial centres’ efficiency, beyond name change – Prof. Akinseye-George

The recent change of the name of Nigerian Prison Service to the Nigerian Correctional Services has attracted comments from various quarters. Also, the call for the creation of special courts for corruption cases which has been on the burner since the onset of President Muhammadu Buhari’s administration in 2015 has been reiterated in the past […]

The recent change of the name of Nigerian Prison Service to the Nigerian Correctional Services has attracted comments from various quarters. Also, the call for the creation of special courts for corruption cases which has been on the burner since the onset of President Muhammadu Buhari’s administration in 2015 has been reiterated in the past week. In this interview, Yemi Akinseye-George (SAN), a professor of law and president of the Centre for Socio-Legal Studies, speaks on the Correctional Services Act 2019 and offers alternatives to special courts.

 

Some commentators have observed that the enactment of the Nigerian Correctional Service (NCS) Act, 2019, is just a cosmetic surgery and that the problems of the custodial system persist. What do you think can be done?

The enactment is a giant step forward in creating for Nigeria a modern custodial and non-custodial system. Since the colonial era, our custodial system has not undergone any significant reform. So, this reform is in tandem with the modern ideas of criminal justice administration in the ACJA.

However, it is not sufficient to pass the law. We must take the next logical step to give effect to the robust innovative provisions. For example, this Act empowers the NCS authority to reject suspects when the centres have become overcrowded. And it also empowers them to transfer inmates, including awaiting trial inmates, to a less congested centre. There is, however, a provision for what is called ‘early warning signals’, which means that the NCS’ authority is to provide warnings to the authorities when the correctional centres are becoming overcrowded. There is a timeframe of about 30 days for this.

It also makes specific provisions with regards to the awaiting trial inmates. It gives the NCS a more active role in triggering the decongestion mechanisms.

The Act also makes it clear that anybody aged 18 years or below must NOT be detained in adult correctional centres.

How do you think the powers granted to the NCS to transfer inmates (including awaiting trial inmates) from one centre to another will sync with the issue of moving inmates to courts?

As we have enacted this law, we need to follow up with a needs-assessment of the correctional centres. We must ensure that the NCS are able to transport the inmates to courts. This huge responsibility of the NCS is underscored by the Act.

It is suggested that where it is impracticable for the NCS to bring some defendants to court, the Service could leverage on technology, such as video conferencing. What is important, particularly after arraignment, is for the defendants to be able to participate in their trial.

Having signed this law, the government should work with the NCS to provide better transportation and other facilities to enable the NCS to convey defendants to court.

What do you make of the call for the creation of special courts for corruption cases?

The call for special courts reminds us of special military tribunals of ‘by-gone’ eras. They may be faster but not necessarily resulting in justice. This is because the process of administration of justice requires time. So, if those special courts are seen in the light of military tribunals then they are not compatible with democracy.

What we need to do is to strengthen the court system and let the criminal divisions of our courts actually focus on corruption cases. It suffices to focus on the designated criminal courts and not on creating special courts. Heads of courts should ensure that the designated special criminal divisions for corruption cases actually function as such. Make sure that they are focusing on corruption cases, particularly high profile cases; specific days must be dedicated to only such cases. Then, you equip the courts with ICT, train the judges on case management and monitor their work closely. With ICT, the judges would not have to write in long hand; there would be video recording and all they have to do is listen. There will be no need for starting denovo when judges retire or are transferred. But those who are not performing can be assigned less urgent maters.

Another thing is to provide special allowances and incentives. Salaries of judges have remained static for several years. The constitution prohibits reducing the salaries of judges; you can only increase it. But although we have not reduced directly, we have done so through inflation and the eroding value of the Naira. Of course, poor salary is no justification for corruption, but it is a factor that must be considered as a means of reducing the temptation of judges which may result in corruption.

We also need to improve the practice directions of courts. For example, the Rules must allow written depositions as in civil proceedings; so that when a witness comes to court, all he needs to do is to adopt. If these are consistently applied, the problem of delay of cases would be a thing of the past. Special courts will create special challenges: Will we also create special investigators, special prosecutors, special witnesses? Will the special courts be manned by angels? Etc.

The National Assembly is mulling the idea of life imprisonment for kidnappers. Looking at this vis-à-vis the state of the country’s correctional facilities, do you think this is the right step?

Life imprisonment is too severe. This can however be the maximum sentence. But the lawmakers should not unduly encroach upon the discretion of the court by making it a mandatory sentence of life imprisonment. This is because there can be unforeseeable extenuating circumstances; so, the judge should be able to weigh the circumstances of each case and apply the appropriate punishment. Sentencing should be in in line with the ACJA Sentencing principles.

The National Assembly can impose it as maximum sentence but should not be the mandatory sentence because if the sentence for an offence is too severe, courts may not want to apply it. Certainty of punishment is a better deterrent than severity of punishment.

 Several innovative provisions were made by the ACJA on non-custodial sentencing; unfortunately, many of them are yet to reach the implementation stage. What could be responsible for this?

What is responsible is basically what I call inadequate preparation for the implementation of ACJA. The law was passed without putting in place facilities to enhance the implementation of non-custodial sentences. However, I am aware that some courts have begun to creatively implement the non-custodial sentences. Some courts in the FCT have issued community service orders. In a particular case, a magistrate ordered a first time offender, convicted of a minor offence, to be cleaning the court premises under the supervision of court officials.

It is not too late for the federal government and the states that have passed the ACJA to embark on a comprehensive needs assessment of the courts, ACAs, the police, investigators, prosecutors, witnesses, Correctional Centres, ACJMC: what do they need to be able to implement these innovative provisions properly?

As a key stakeholder in the drafting of the bill that finally metamorphosed into ACJA, four years down the line, the number of awaiting trial inmates seem to be increasing as against the true intent of the Act. This has led to some commentators to opine that perhaps the Act was meant only to expedite trials of high profile persons. What is your opinion on this?

ACJA has succeeded in expediting trials in cases of high profile defendants by doing away with the abuse of interlocutory proceedings. That is a major success. However, as regards taming the monster of awaiting trial inmates, there is still a large room for improvement. The problem is not with the ACJA, but some law enforcement agents who abuse the provisions of ACJA. For example, police investigators who are not complying with pre-trial protocols for adequate documentation of suspects. Without this, the courts cannot implement the liberal provision of the ACJA on bail. Suspects need not be detained if there’s adequate documentation on them.

The courts should insist that before the prosecutor arraigns, they should obtain adequate information on the suspects. So, the persistent problem of growing awaiting trial inmates population is not due to the ACJA but to the non-compliance with the ACJA. Therefore, there’s need to create more awareness and build the capacity of more investigators, particularly the police. Then, there should be sanctions for non-compliance as provided in the ACJA.

Why do prosecutors still take cases they know naturally can only be tried at a high court to magistrate courts?

They do that because it is convenient for them. Also, they may not even understand the remand proceedings under the ACJA. Lack of sanctions is also a reason. Magistrates who continue to remand suspects without complying with ACJA/ACJLs should be reprimanded and sanctioned.