Nigeria’s gradual descent to the nasty and brutish state of nature is accelerating with the incessant and arbitrary detention of citizens. However, it gets more worrying when the judiciary, which is considered the last hope of the common man, fails to play its role and allows state actors to trample on the rights of citizens.
Wrongful confinement of an individual runs contrary to basic rights as persons are presumed innocent until proved otherwise. But the frequency with which lower courts – especially magistrates’ and high courts – grant remand orders and ex parte motions defeats the purpose of the presumption of innocence. Law enforcement agencies now obtain orders to remand suspects for up to 30 days or more under the guise of “investigation” and this is done with the approval of supposed priests in the temple of justice. Suspects thus languish in deplorable conditions, while security operatives go about fishing for evidence when the reverse ought to be the case. Consequently, an atheist, Mubarak Bala, has spent over six months in detention in Kano State while his plea has yet to be taken.
But there are worthy examples of how to investigate and prosecute criminal cases, which Nigerian law enforcement agencies can emulate. Earlier in the year, alleged international fraudster, Ramon Abass, aka Hushpuppi, and his accomplices were arrested by the police in Dubai after months of painstaking investigation and evidence gathering. This contrasts sharply with the crude manner with which anti-graft agencies in Nigeria raid, parade and detain fraud suspects for weeks while seeking evidence, putting the cart before the horse.
The Chief Justice of Nigeria, Tanko Muhammad, had at the virtual opening ceremony of the 2020 Biennial All Nigerian Judges Conference of the Lower Courts last week, warned judges of lower courts to stop issuing reckless remand orders, especially when the court lacks the requisite jurisdiction to entertain such matters. But this is not the first time such a weighty warning would be given. Muhammad’s predecessor, Walter Onnoghen, issued a similar warning at the 2018 version of the conference, saying, “On the issue of prison decongestion, it is a scenario which has become a national embarrassment. The numerous and sometimes needless remand orders issued by magistrates is a major factor responsible for the congestion of our prisons… reckless remand orders must not be issued by your courts where it appears that the police lack evidence to prosecute a criminal matter or your courts do not possess the requisite jurisdiction to entertain such matter.”
However, the failure of the National Judicial Council and other judicial authorities to sanction errant judges and magistrates has allowed such infractions to continue, thereby abusing the rights of suspects and putting an avoidable strain on detention facilities and public funds. Unsurprisingly, more than 70 per cent of detainees nationwide are awaiting trial inmates. Open Society Justice Initiative says police in Nigeria routinely charge suspects with a serious offence in order to have them detained, but make little or no effort to investigate or prosecute the case. But Femi Falana, a frontline human rights activist, rightly adds if all detention facilities in the country are henceforth regularly inspected by judges and chief magistrates as stipulated by the law, the people of Nigeria will no longer be subjected to illegal arrest and detention by the police and other security agencies.
The continuous refusal of state and federal chief judges to appoint judicial officers to inspect detention centres as mandated by the Administration of Criminal Justice Act 2015 has also emboldened law enforcement agencies to illegally detain suspects. Section 34 of the law expressly states that Chief Judges of the Federal High Court, Federal Capital Territory High Court and state High Courts shall designate Judges and Chief Magistrates to conduct monthly visitation and inspection of all police stations and other detention facilities in all the states of the federation and the Federal Capital Territory. According to the law, during such visits, a judicial officer can immediately grant bail to suspects they deem should not be in detention. Besides, such visits could expose the cases of torture that take place in such detention facilities.
Sadly, this law has not been enforced since it was promulgated five years ago, according to several rights groups. Perhaps, the alleged killings in the custody of the Special Anti-Robbery Squad, which propelled the #EndSARS protests that brought the country to its knees, might not have happened if judicial officers had honoured their oath of office in the first place by upholding the law.
Bail is supposed to be free, but suspects are never released from custody without bribing policemen, which often prolongs their detention. But the judiciary cannot be solely blamed for the high cases of illegal detention. The Office of the Attorney-General of the Federation led by Abubakar Malami has failed woefully as far as obedience to court orders is concerned. The asinine argument that persons can be detained indefinitely on the basis of national security has increased the cases of illegal detention under his watch and given government agencies like the State Security Service the audacity to detain people arbitrarily and deny them access to their families and legal representation in contravention of court orders.
But is it not too late to do the right thing. The judiciary can prevent gross violations of the rights of the citizens by resisting the urge to grant remand orders for petty and first time offences while limiting such orders to heinous offences like murder and armed robbery, albeit with caution. Courts should make use of non-custodial sentencing like community service more frequently.
Section 133 of the United Kingdom’s Criminal Justice System provides for compensation in cases of miscarriage of justice. Article 14 (6) of the International Covenant on Civil and Political Rights states that a person who suffers punishment due to miscarriage of justice, shall as a result of such conviction, be compensated. These are international best practices that should guide Nigeria’s justice system.
Judges must be courageous by ensuring that their orders are enforced and play a more active role in protecting the rights of the common man by visiting detention facilities more frequently. They must remember that they are not spectators but referees in the affairs of state and their refusal to act can derail the nation’s democracy. As a philosopher, Edmund Burke, once said, “The only thing necessary for the triumph of evil is for good men to do nothing.” The judiciary should play a broader oversight role through a regular inspection of detention and correctional centres.