Kinds of Prisoners – Besides our religious and neighbourly desires to bring hope to prisoners, there is also the JDPC concern that only persons who deserve to be in prison should be in prison; and that such persons should not be imprisoned for longer than they deserve. In Nigeria, we have two kinds of prisoners. There is the prisoner who is in prison because he truly deserves to be in prison. He is the prisoner who has been duly tried for a crime he committed, found guilty and convicted, and accordingly sentenced to a term in prison. This type of prisoner includes those who have been condemned to die for their crime.
The Awaiting Trial Debacle – There is also the type of prisoner who is in prison, not because he has been tried, convicted and sentenced, but he is there in prison awaiting his trial. Statistics available indicate that in Nigeria, this type of ‘prisoner’ constitutes more than 90% of total inmates in Nigerian prisons. They are generally referred to as ‘Awaiting Trial’ prison inmates. For instance, Olisa Agbakoba in his book, Travesty of Justice, published in 2004, gave the figures of the inmates in some Nigerian prisons to include that:
(1) In the Lagos Medium Prison, of the total 2618 inmates, 2256 of them representing 86% of them are awaiting trial.
(2) In the Ikoyi Prisons Lagos, 1631 of the total 1771 representing 92% are awaiting trial; while
(3) in the Warri Prison, 395 of the 561 representing 70% were awaiting trial.
I apologise I couldn’t lay my hands on more recent statistical figures but I know that the situation as represented by the above figures still has not improved.
Some of these awaiting trial inmates have been and are in prison for longer than the maximum term that they would be made to serve if they had been duly tried and found guilty on the day they were first put in prison. They are no prisoners in the real sense because their guilt for the offences against their names have not been proved. They are not convicted as yet. And they have not been sentenced to be where they now are. They are, nonetheless, prison inmates!
How did they get there? I will leave the answer to the police and the courts including the prison authorities to provide. Luckily, we have the Deputy Controller of Prisons in the house. But I will tell you the little I know which may not be all the answer. And this little that I know is that these unfortunate Nigerians got into prisons to ‘await’ their trial and have remained there as a result of a grossly inefficient and ineffective system of justice administration.
It operates this way: The police arrest a person at the commencement of an investigation into a crime. For the police in Nigeria, investigations begin (instead of concluding) with arrests and detention. The person who gets arrested may clearly be unconnected with the crime. But he is arrested all the same and locked up in the police cell. He is then expected to be a true Nigerian. Do what a true Nigerian is expected to do in such circumstance and secure his freedom. But if for some reason, he is unable to prove that he is a true Nigerian, a very serious charge may be framed against him and dragged to the wrong court where he is ordered reminded in prison custody by the court for want of jurisdiction for the charge and pending the opinion of the Director of Public Prosecutions (DPP) which will never come.
In such a situation, he is said to have been charged under a ‘holding charge’ – a charge preferred against him deliberately before a wrong court which has no jurisdiction for the charge with a view to becoming free of the responsibility for keeping him unlawfully beyond the constitutional limits and transferring same to another institution of government poorly equipped for resisting the imposition.
Apart from the wickedness of a holding charge, it is a charge which is unknown to our laws and has been severally declared to be so by superior courts of the land. In this regard, the honourable Justice Niki Tobi (JCA as he then was) had in the case of Onagoruwa v The State (1993) 7 NWLR (Pt. 303) 333, 341 said’
‘… before the prosecution takes the decision to prosecute, … it must have at its disposal all the evidence to support the charge. (But) in a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge, ever before they conduct investigations, although there is nothing known in law as a holding charge’.
Notwithstanding this clear pronouncement of the Court of Appeal as to the unlawful nature of the holding charge, the police practice of rushing persons deliberately to the wrong courts persists. Indeed the same judge had cause, three years on, to lament that
‘I have said it before and I will say it again that the uniquely police phraseology of a “holding charge” is not known to our criminal law and jurisprudence. … There is nothing like a holding charge.’
The evil of the holding charge lawlessness does not end at the deliberate arraignment of the individual in the wrong court as described above. The case file will never get to the office of the DPP either out of a wicked premeditated intention on the part of the police or as a result of an absence of necessary resources for getting the case file to move from the police through the court to the office of the DPP. There have been reported instances where the police, after the arraignment, promptly destroy or simply throw away the case file. If, as usually happens, the individual has no friends or relations who are aware of his travails, he just simply rots away in prison custody with the prison authority unable to do anything about his situation since their last and only instruction is to keep him in their custody.
DEMOCRACY – But we are in a democracy where we all (including the prison inmate) are part of the government in one form or the other – the government of the people for the people and by the people. We are a democratic society governed by a 2011 constitution (as amended) with a Chapter IV dealing with such Fundamental Human Rights as the right to life, right to dignity of human person, right to fair hearing, right to private and family life etc and especially a section 35 (1) which proclaims that
‘every person shall be entitled to his personal liberty and no person shall be deprived of such liberty’
except in any of the situations as spelt out in paragraphs (a) to (f) of the subsection and with the proviso that
‘a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence’.
But in this democratic setting aforesaid, it will not be inaccurate to state that notwithstanding the clear wordings of the above proviso, there are a good number of unfortunate individuals, presumed to be innocent under the law, who are languishing in our prisons as inmates ‘awaiting trial’ and who have been so kept for periods ‘longer than the maximum period of imprisonment prescribed for the offence’ for which they are accused.
One of the situations for which a person may be denied his entitlement to his personal liberty as spelt out in paragraph (c) of subsection 1 of Section 35 of the 1999 constitution is
‘for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence’.
The constitution then expressly provided that such a person must be brought before a court of law within a reasonable time, and if he is not tried within a period of two or three months from the date of his arrest or detention, he shall be released either conditionally or unconditionally as the case may be. See subsection 4 of Section 35.
Prisoners are Humans – The reports which filter out of Nigerian prisons regarding the conditions under which inmates are kept leaves one wondering if the prisons are meant for human beings. We read about and hear of all kinds of worrying reports from our prisons such as reports of dehumanising infrastructures and poor feeding and medical attention. Prisoners remain human beings. They must not be subjected to subhuman conditions. In this respect, our democratic constitution provides that’
‘every individual is entitled to respect for the dignity of his person, and accordingly,
(a) no person shall be subjected to torture or to inhuman or degrading treatment …’.
Worries – With the kind of beautiful provisions in our democratic constitution, why do we have the kind of worrying reports about dehumanising conditions of Nigerian prisons and the kind of statistics in relation to the huge number of persons in our prisons who are awaiting trial? These are very worrying questions which very seriously bothers the Justice Development and Peace Caritas (JDPC). They are questions about which the JDPC desires to seek practical answers. They are questions the answers to which we in the JDPC believe we can, beginning from today, to put in place.
Way Out -We believe that the answers to the questions which worry us will fall in place, if
(a) everybody who is involved in the administration of our criminal justice would do his work with the fear of God at all times and would do so with the diligence which a consciousness that he is dealing with the personal liberty and freedom of another individual imposes on.
(b) all the institutions involved in the process are adequately equipped both in terms of infrastructure and general logistics to effectively carry out their duties and functions.
(c) the various organisations involved in prisons advocacy and apostolate will step up their advocacy. In this respect, the JDPC of the Warri Catholic Diocese wishes to, on this day of the celebration of Democracy Day in Nigeria renew and reinvigorate our resolve to work towards bringing justice to all persons who unduly suffer any form of deprivations anywhere within our diocese.
(d) prisons administration is decentralised to reflect the federal legal system of Nigeria so that states are constitutionally allowed to build and run their own prisons. I THANK YOU ALL FOR YOUR LISTENING PATIENCE.
Being an abridged version of a paper delivered by at a DEMOCRACY DAY WORKSHOP organised by the Justice Development and Peace (Caritas) of the Catholic Church (Warri Diocese) on the 29th of May 2013 at the Catholic Pastoral Centre Agbarho with the theme: DEMOCRACRY, PRISONS AND THE IDEA OF JUSTICE
