The Nigerian Correctional Facilities: Who Is Responsible? By Nwabueze Obasi-Obi, ESQ.
ABSTRACT
This paper investigated and discussed the responsibility of ensuring the defendant’s attendance to his trial within Nigeria’s legal framework. The rationale and importance of the defendant’s personal attendance is examined through statutory authorities in Nigeria. The paper also addressed practical issues and shortcomings related to the responsibility of ensuring the defendant’s attendance at trial and the resulting effect of the failure to discharge the responsibility.
1.0 ESTABLISHMENT OF THE NIGERIAN CORRECTIONAL SERVICE
Prior to the Nigerian Correctional Service Act 2019, the Prisons Act Cap. P29 LFN 2004 set out the guidelines for the administration, management, and welfare of inmates in Nigeria’s Prisons at the time. The Prisons Act prescribed safe custody as the primary mandate of the service and did not actually speak to the behavioral reorientation required to prepare offenders for subsequent re-integration back to the society.[1] The provisions of the Prisons Act emphasized on punishment rather than rehabilitation of inmates, the Act also did not address human right abuses or alternative punishment to imprisonment. These shortcomings necessitated the repeal of the Prisons Act.
On the 14th August 2019, former president Muhammadu Buhari signed the Nigerian Correctional Service Act into law. The new Act seeks to do away with some derogatory terms like ‘prison’ and ‘prisoner’ but rather in place introduced the word ”correctional’ and ‘inmates’ respectively.[2] The change of the term prison to correctional center is to reflect the modern concept of criminal justice administration which is reformative and restorative in nature as against retributive justice system that emphasizes the use of punishment against offenders.[3] Essentially, the new Act places greater emphasis on the welfare and rehabilitation of inmates.
It is also worthy of note that from 1st October 1992, the office of the Head of Nigerian Correctional service was changed from the ‘Colonial Director of Prisons’ to Controller- General of Prisons. Then J.O. Lily Ojo who was the then colonial Director of Prisons became the first Controller-General of Prisons. Thereafter, with effect from 31st July 2019, following the signing of the Nigerian Correctional Service Act 2019 into law, the office was branded Controller-General of Corrections.
The rationale behind the enactment of the new Act is also evident in its stated objectives, which include: ensuring compliance with international human rights standards and good correctional practices, providing enabling platforms for implementation of non-custodial measures, enhancing focus on corrections and promotion of reformation, rehabilitation and reintegration of offenders and establishing institutional, systemic and sustainable mechanisms to address the high number of persons awaiting trial.[4]
The correctional service is established by section 1 of the National Correctional Service Act 2019 and the Act is divided into two parts. The first part of the Act provides for custodial service and the second part of the Act provides for non-custodial service. The first part of the Act is particularly relevant to our discussion on ensuring the defendant’s personal attendance in court.
2.0 LEGAL FRAMEWORK ON DEFENDANT’S ATTENDANCE TO TRIAL
A fundamental aspect of Nigerian criminal law jurisprudence is the array of rights afforded to individuals charged with committing an offence. These rights are entrenched in the substantive and procedural laws regulating the dispensation of criminal justice in Nigeria. The most inclusive of such rights is the right to Fair hearing, which entails a judicial or quasi-judicial proceeding that is conducted in a way that is fair to all parties, where each party is given equal opportunity to present their case without bias.
Fair hearing is one of the fundamental rights entrenched in chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). With respect to the conduct of criminal proceedings, Section 36(6)(a)-(e)[5] provides for the following:
(6) Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial for the offence. (underlined for emphasis)
The common denominator underlying the above rights is the Defendant’s presence at trial and promptness in the discharge of functions. The above rights can only be exercised by the Defendant while he is present at trial, there will be little or no essence of the above rights if the Defendant is absent during trial especially due to untenable excuses of the authorities.
Section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria as amended also underscores the importance of the defendant’s presence at trial where it provided thus:
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In subsection (4) of this section, the expression ‘‘a reasonable time’’ means –
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.
From the above provision, the constitution is clear on promptness and timeliness within which the suspect should be brought to court. Therefore, any delay in bringing the suspect before the court is a negation of the intents and spirit of the Grund norm. At least, a suspect is expected to know his/her fate at the earliest time, without having an allegation hanging on his/her head while facing prolonged time in detention only to be found innocent.
Hence the reason for the express provision of the defendant’s attendance at his trial in section 266 of the Administration of Criminal Justice Act 2015 which provides:
“A defendant shall, subject to the provisions of section 135 of this Act, be present in court during the whole of his trial unless:
(a) he misconducts himself in such a manner as to render his continuing presence impracticable or undesirable; or
(b) at the hearing of an interlocutory application.[6]
From the above provision of the Administration of Criminal Justice Act 2015, it is established that asides from the circumstances where the personal attendance of the defendant may be dispensed with in line section 135 of the Administration of Criminal Justice Act 2015, the personal attendance of the defendant at trial is sacrosanct.
While the Courts have a duty to ensure that the Defendant is fully aware of the rights afforded to him under the law and that the rights of the Defendant are not infringed nor the rights of the Defendant shortchanged. In criminal trials, it is the duty of the court to ensure that due process is followed in a criminal trial e.g. reading the charge to the Defendant or making use of an interpreter where necessary at no cost.
However, the brunt of the justice delivery in Nigeria is not the sole responsibility of the Courts. The Law enforcement officials and the correctional service have a fundamental part to play as well. It is the harmonious interplay of the Courts, the law enforcement officials and the correctional service that will give rise to a functional justice delivery system.
Since a crime is an affront on the state, a suspect/Defendant accused of allegedly committing the crime becomes a person of interest to the state hence the welfare of such suspect/Defendant becomes the responsibility of the state. Moreover, no matter how obvious it is that such person committed the crime, he is innocent until proven guilty and he can only be proven guilty through a well conducted trial at a court of competent jurisdiction.[7] This is the reason why any doubt in the mind of the court in the course of the trial is resolved in favour of the defendant.
A scenario at hand is where an offence is committed, the suspected individual (Mr. D) is first arrested by law enforcement agents following a complaint or without one and Mr. D is then kept in custody by the law enforcement agents who effected the arrest until Mr. D is granted administrative bail (where the offence is bailable) until such a time Mr. D is formally charged to court. On the flip side, where the offence Mr. D is suspected to have allegedly committed is not bailable, Mr. D will remain in the custody of the law enforcement agents and subsequently the correctional centre, until the fate of Mr. D is decided by a court. Sometimes, the law enforcement agency would approach an inferior court to obtain an order to detain the suspect (Mr. D) for more days or would apply to that inferior court for the suspect to be remanded in prison pending the filing of a proper charge (otherwise known as holding charge which is unknown to our legal system).
The first scenario relates to when the suspect is alleged to have committed an offence and is eventually able to secure bail from the law enforcement agencies/ the court. In this instance the attendance of the Defendant to his subsequent trial is within the Defendant’s control. This is why section 35(4) of the Constitution of the Federal Republic of Nigeria provides:
(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of-
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail; he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.[8]
The effect of the above provision emphasizes the obligation on the suspect or defendant to ensure his/her presence in subsequent trials having been granted bail. It is important to note also that Section 113 of the Administration of Criminal Justice Act 2015 provides:
“A court may issue a summons or warrant as provided in this Act to compel the appearance before it of a suspect accused of having committed an offence in any place, whether within or outside Nigeria, triable in a State or in the Federal Capital Territory, Abuja.”[9]
Basically, from the above provision, upon the service of the summons on the defendant, it is the responsibility of the Defendant to present himself before the court for his trial and where for any reason the defendant cannot attend his trial, the defendant must provide reasonable explanation to that effect.
The Act further provides what cause of action the Court should take when the Defendant does not present himself before the Court in section 352(1) of the Administration of Criminal Justice Act 2015 as follows:
“Where a case is called in which summons has been issued and the defendant does not appear, or pleads guilty under the provisions of section 135 of this Act, and no sufficient excuse is offered for his absence, then the court where it is:
(a) satisfied that the summons, if any, has been duly served, may issue a warrant, called bench warrant for his arrest; or
(b) not satisfied that the summons has been duly served or where a warrant had been issued, in the first instance, for the arrest of the defendant,
shall adjourn the hearing of the case to some future day, in order that proper service may be effected or, until the defendant is arrested, as the case may be.”[10]
The second scenario which is pivotal to this discourse, relates to when the suspect is alleged to have committed an offence and is unable to secure his bail either due to the nature of the offence he is alleged to have committed or his inability to fulfil the bail conditions. In this instance, the defendant will be in the custody of the law enforcement agents or in the correctional centre as ordered by a court; in such instance his personal attendance to his trial is not within his control but becomes the responsibility of the agency in whose custody he is, or the correctional centre where the defendant is in custody. One will be shocked to know that some suspects fund their trips and that of the law enforcement agents to court and it is even very common that the nominal complainant would fund some aspects of the administration of criminal justice. It will be a paper for another day when we shall x-ray whose responsibility it is to fund arrest, investigation activities amongst others.
The responsibility of the correctional centre to ensure the defendant’s personal attendance to his trial will be examined in this paper through the lens of the Nigerian Correctional Service Act 2019.
Recall that we commenced this article by identifying the establishing law of the Nigerian Correctional Service. It is therefore pertinent to state the functions of the Correctional Service with reference to the extant Act.
The Act clearly sets out the functions/obligations of the Nigerian correctional service and the rights of inmates. The functions of the correctional service is set out in section 10 of the Act as follows:
(a) taking custody of all persons legally interned;
(b) providing safe, secure and humane custody for inmates;
(c) conveying remand persons to and from court in motorized formations;
(d) identifying the existence and causes of anti-social behaviors of inmates;
(e) conducting risk and needs assessment aimed at developing appropriate correctional treatment methods for reformation, rehabilitation and reintegration;
(f) implementing reformation and rehabilitation programmes to enhance the reintegration of inmates back into the society;
(g) initiating behavior modification in inmates through the provision of medical, psychological, spiritual and counselling services for all offenders including violent extremists;
(h) empowering inmates through the deployment of educational and vocational skills training programmes, and facilitating incentives and income generation through custodial centres, farms and industries;
(i) administering borstal and related institutions;
(j) providing support to facilitate the speedy disposal of cases of persons awaiting trial; and
(k) performing other functions as may be required to further the general goals of the service.[11]
From the above functions, paragraph c, which is conveying remand persons to and from courts in motorized formation is clearly the responsibility of the correctional service to ensure the personal attendance of the inmates in court. In the same vein, paragraph j above which is the provision of support to facilitate the speedy disposal of cases of persons awaiting trial would include conveying such persons to the court when required to.
Moreso, paragraph k which I would term an omnibus provision ensuring the performance of the set goals of the Act would entail ensuring the production via vehicular movement of inmates to court in other to attend their trial. One would wonder when the correctional centre would be decongested if the authorities are unwilling/unable to produce the inmates to attend their trial or if it is in the interest of the correctional centre for there to continuously be congestion of the correctional centre. No doubt, feeding of inmates is another issue that requires urgent attention considering the kind of food given to the inmates which leaves them looking malnourished unlike their foreign counterparts who serve their term looking like they fed themselves in their various homes.
It is worthy to note that section 17 of the Act provides for the production of an inmate before a court upon the issuance of an order of court requiring an inmate to be produced before it. A practical situation where a Judge of the High Court in the Federal Capital Territory made a similar order on the 7th November, 2024 will be highlighted in due course under practical issues.
Similarly, it is worthy to note that the Nigerian Correctional Service is one of the agencies domiciled in the ministry of interior therefore the financing of the correctional service is done through the ministry of interior. The budget allocation process in Nigeria usually begins with each ministry drafting a budget proposal outlining their financial needs and thereafter the budget proposal is submitted to the budget office of the federation. It is expected that during the drafting stage of the budget, the minister considers the needs of the relevant agencies and make a sufficient estimate of funds required by each agency to facilitate the discharge of their duties.
COMMENT/ PRACTICAL ISSUES
What becomes of the above provisions of the law where the inmates at the correctional service are required to pay a certain amount to the officers of the correctional service to enable the officers of the correctional service convey the inmate to court for his trial when required. This is gradually becoming a norm, a rampant practice in correctional centres within the Federal Capital Territory and Nigeria as a whole.
A ready example at hand is a criminal case conducted at the High Court of the Federal Capital Territory sitting in Nyanya before His Lordship Hon. Justice Aliyu Y. Shafa, where a female defendant and inmate at the Suleja correctional service was not brought to court because of ‘logistics issues’. Meanwhile the female inmate in question had complained to members of her family, legal representatives and to the judge in open court that a certain amount of money has been demanded of her to pay severally to facilitate her transportation to the court for her trial. This complaint infuriated the trial Judge and His Lordship had to direct in court that the prison authorities desist from demanding money from the defendant.
In the practical example above, His Lordship on the 7th November, 2024 which was the next adjourned date, upon realizing that the defendant was not brought to court on logistics grounds as indicated by the prosecutor was urged to make an order directing the officer in charge of the Suleja correctional centre to provide the defendant on the next adjourned date being the 27th November, 2024 or be cited for contempt of court. This order was issued and enrolled by the trial Judge and the court also directed that the order be served on the officer in charge of the Suleja correctional centre. The trial Judge also noted that on the last adjourned date (26th September, 2024) when the defendant complained of the extortion, he cautioned the officers in open court but apparently the officers failed once again to bring the defendant before the Court on the 7th November, 2024 because the defendant refused to provide the money.
It is appalling that an inmate in the correctional service, whom the law still presumes is innocent of the charge against him is made to suffer and bear the brunt of providing for his transportation to and from the court for his trial while the mere fact that he is in the custody of the correctional service deprives him the ability to find gainful employment and make an honest living, how then is this inmate expected to provide money for transportation of himself to court for his trial. Of course, funds won’t have been an issue of the inmate if he had stolen money or was alleged to have stolen money from government coffers.
It is expected that the Controller-General of prisons is provided with the necessary funds from the state to ensure the needs of the inmates at the correctional service are met. However, this expectation is far from being met which is the genesis of the issue at hand.
Unfortunately, the inmate who is the defendant at trial suffers the better part of this situation, where the inmate fails to provide the sum asked of him, he will not be transported to the court for his trial as was the situation in the practical example cited above despite the intervention of the trial judge. We would await the next adjourned date being the 27th November 2024, if the defendant would be brought before the court. I commend the prosecutor in the instant case who promised to escalate the situation and also expressed his dissatisfaction with the situation.
Since the defendant’s presence is of utmost importance, no substantial progress will be made in the case without him, one can only imagine what will be going through the minds of the other defendants where they are jointly charged and kept in different correctional facilities as in the instant case. If Mr. A who is in Kuje correctional centre is jointly charged with Mr. D who is in Suleja correctional centre and Mr. A is brought to court on the date for trial while Mr. D is not brought to court, Mr. A would also suffer from the circumstance and would be unable to make progress in the case as well. In the event, Mr. A paid money to the officers of the correctional centre to be brought to court and Mr. D is not brought to court because he was unable to pay the sum demanded of him, Mr. A would in fact have wasted his resources and time as no progress will be made also.
This will unavoidably lead to the case suffering series of adjournments ultimately delaying the justice delivery system and valuable time which cannot be recovered by the inmate/defendant and the court. Justice will then inevitably come at a price to the defendant. It is without gainsaying that justice delayed is justice denied. It is time for a change and the change is now. For this systematic change to happen in the correctional facilities, one may want to ask, who is responsible ?
RECOMMENDATIONS
- The Government should provide the necessary resources to enable the correctional facilities fund the transportation of inmates to their various courts.
- There should be a record entered on each court date stating why the inmate was not brought to court and the registrar of the courts should be copied.
- There should be a monthly or quarterly update to the minister of interior on the compliance or otherwise with the transportation of inmates to court.
- There should be disciplinary action meted on correctional service officers that attempt or collect money from inmates at the correctional service for the purpose of discharging the functions of the correctional service.
- There should be enlightenment programs to inform inmates of the duties the correctional service owes to them.
- There should be a call for an investigation into the root cause of the demand of money for logistics from some inmates in correctional centres across the country.
The author can be reached via: nwabuezeobasiobi@gmail.com
[1] Halima Doma Kutigi, ‘A Review of the Nigerian Correctional Service Act 2019 and its Relevance to Effective Criminal Justice Administration’ <https://nigerianjournalsonline.com/index.php/IJOCLLEP/article/download/1173/1156 > accessed 20/10/2024.
[2] MIKE ANYADIEGWU, ‘An Appraisal Of Major Innovations Under The Correctional Service Act 2019: Keys To Efficient Criminal Justice Administration In Nigeria’ [2023] 1 (3) Frontline Bar Journal (FLB) < AN APPRAISAL OF MAJOR INNOVATIONS UNDER THE CORECTIONAL SERVICE ACT 2019: KEYS TO EFFICIENT CRIMINAL JUSTICE ADMINISTRATION IN NIGERIA | ANYADIEGWU | Frontline Bar Journal> accessed 20/10/2024.
[3]Ibid.
[4] Section 2 of the National Correctional Service Act 2019.
[5] Constitution of the Federal Republic of Nigeria 1999 (as amended)
[6] Section 266 of the Administration of Criminal Justice Act 2015.
[7] Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
[8] Constitution of the Federal Republic of Nigeria 1999 (as amended)
[9] Section 113 of the Administration of Criminal Justice Act 2015.
[10] Section 352(1) of the Administration of Criminal Justice Act 2015.
[11] Section 10 of the Nigerian Correctional Service Act 2019.
