The overall objective of
justice sector reform is to build a justice system which is affordable,
efficient, independent, transparent, professional and accountable to
Nigerians, Olawale Fapohunda and Onikepo Braithwaite review the current
state of key institutions in the justice system and suggest various
legislative and administrative interventions available for the
consideration of the Buhari administration
The Buhari administration has severally
stated its desire to reform the administration of justice system in
Nigeria. In particular, the Judiciary, Police Force, Prisons Service and
Access to Justice institutions, have at various times, been the subject
of statements of commitment to reform by the Presidency and responsible
government Ministries and departments.
A combination of limited political will,
including government’s inability to articulate what needs to be done,
the lack of merit based appointments to leadership positions of key
justice sector institutions, and the appointment of persons without
subject- matter appreciation or passion for reform, have proved
important stumbling blocks towards achieving reforms in this sector.
The Judiciary
Having a system of independent courts and
tribunals that administer justice efficiently is one of the
cornerstones of Nigeria’s democracy. Finding the balance between
judicial independence on one hand, and public accountability on the
other, is a critical challenge. Like with the other two arms of
government, the judiciary faces certain inherent problems, which show
the weaknesses and defects of the system. These require immediate
reforms.
Corruption is just one of these
challenges. Judicial corruption is not simply about judges taking
bribes; it includes all forms of inappropriate influence that may damage
the impartiality of justice. Other challenges include the backlog of
pending cases in all our courts and the use archaic systems. The issues
of poor infrastructure affecting all courts, particularly the lower
courts, defective judicial appointments and the tragic inability of most
of the state governments to support judicial financial autonomy are
known obstacles. Fighting judicial corruption is a good idea, but a
judiciary that takes it bearings from the executive and is compelled to
frequently go cap in hand to the executive for funding, even the for the
most basic of its needs, cannot by any stretch of imagination inspire
citizens confidence.
Proposals for Reform
Immediate Confirmation of Honourable Justice Walter Onnoghen as the Chief Justice of Nigeria
The year 2016 was a remarkable one in the
life of the Judiciary. The arrest and prosecution of some judges was
the biggest news in the past year. The year also saw the retirement of
Honourable Chief Justice of Nigeria, Mahmud Mohammed and the appointment
of Honourable Justice Walter Onnoghen JSC as the Chief Justice of
Nigeria in an acting capacity. He is yet to be confirmed.
Mr. President should immediately take
steps to achieve the confirmation of the Acting Chief Justice and
thereupon, facilitate a result-oriented discussion with the Judiciary,
the National Assembly and other Justice Sector Stakeholders on the
following matters:
• Proposals for a Constitutional
amendment that seeks to review the composition of the National Judicial
Council, including separating the office of the Chief Justice of Nigeria
from that of the Chairman, National Judicial Council.
• Modalities for the establishment of a
High Level Judicial Panel to review all cases of corruption in the
Federal and State Judiciaries, for the purposes of presenting findings
to the National Judicial Council (Pending amendment of the
Constitution).
• Meeting with Governors of the 36 States
of the Federation on funding the judiciary, including establishing an
independent Judicial Benefits and Compensation Commission appointed by
the President in consultation with State Governors, to undertake a
comprehensive review of salaries, allowances and benefits of all
Judicial Officers in Nigeria, including lower court judges. The
Commission should be required to submit a report with its
recommendations to the National Council of States for deliberation and
possible implementation.
Nigerian Police Force and Police Reform
In 2016, there was a change in the
leadership of the Nigerian Police, Solomon Arase retired and Ibrahim
Idris was subsequently appointed Inspector-General of Police. Arase is
widely credited for embarking on a wide range of reforms aimed at
reversing the negative perception of the police, and transforming the
Nigeria Police into a true public servant capable of elevating the sense
of security of Nigerians.
These reform measures include
facilitating the enactment of a progressive Nigeria Police Services Bill
to replace the outdated Police Act. Also in response to the
considerable unhappiness with the system of inquiring into Public
complaints against the police, Arase reviewed the police complaints
handling process.
These interventions have by no means
solved all the problems with the police and policing in Nigeria, and the
immediate concern is that the present IGP has left no one in doubt that
he may be unwilling to continue with any programme remotely connected
to Arase.
Proposals for Reform
Support Legal and Constitutional Reform
The reform of the Nigeria Police Force
(NPF) will require a wide range of reforms, including organisational
restructuring aimed at making the police operationally neutral,
institutionally accountable, and service-oriented.
In addition to directing the IGP to get
on with the task of policing Nigeria, and stop complaining about missing
cars in the garage of the Police Force, the Buhari Administration
should embark on the following reform measures:
• Support the repeal of the Police Act
and propose Constitutional amendment aimed at facilitating respect for
human rights, gender equality, pro-poor policing and enhancement of
community policing. Further, the police law reform process should
emphasise accountability, including vesting the operational control of
the police in the hands of the Inspector-General of Police (IGP) rather
than the President. In addition, provision should be made for the
appointment of the IGP through a transparent, meritocratic and
competitive process with a fixed tenure of office
• Appoint an independent police
ombudsman, with strong authority to receive complaints from the public
on matters of police corruption, including delay in investigation of
crimes, abuse of power and extra-judicial killings.
• Commence the Implementation of existing
recommendations for the review of the conditions of service of the
Nigerian Police, including an audit of the physical state of all police
stations and training institutions in Nigeria.
• Review the mode of appointment of
Chairperson and members of the police service commission. Stop the
practice of appointing retired police chiefs as chairperson of Police
Service Commission.
• Facilitate a national dialogue on the desirability of state police with a view to commencing pilot projects in some states.
Nigerian Prisons Service and Prisons Reform
In 2016, the wind of change appears to
have blown away from the Nigerian prisons. The only event of note in the
Prisons Service was the appointment of a new Controller-General of
Prisons, and even that was not without controversy. Our prisons continue
to be a source of concern due to overcrowding, under staffing,
inadequate and inappropriate conditions for prisoners and prison
officers alike, poor administration, long detention of those awaiting
trial and limited access to legal advice and representation.
The period under review witnessed three
jailbreaks and an attempted one. Abuja, Nsukka, Kotonkafe and Abakaliki
prisons all had episodes of prisoners unrest. The immediate problem
facing the prison system is overcrowding, at least in prisons located in
the cities. Many prisons are now operating at more than 150% of
capacity. This has resulted in intolerable conditions. Concerns about
poor sanitary conditions and feeding are rife; four in five prisoners in
some prisons inspected last year by the National Human Rights
Commission said they spent at least 23 hours a day locked-up in their
cells. We cannot reform prisons with this level of Overcrowding.
A few examples may be worth noting. Port
Harcourt Prisons, in Rivers State has a capacity of 804, today it holds
more than 3,593 prisoners, Agodi Prisons in Ibadan, Oyo State has a
capacity of 294, it now holds over 1000 inmates, Owerri Prisons in Imo
State has a capacity of 548, it now holds just over 2,144 prisoners,
Kano Central Prisons has a capacity of 690, there are now over 1,609 in
that prison, in Lagos State, Ikoyi Prisons has a capacity of 800, it now
struggles with more than 2,239 inmates.
It is worth repeating for emphasis, that
keeping thousands of persons in our prisons without trial is not simply a
law, justice and human rights issue or about costs. It is one of
national security. The evidence of this can be seen first hand in the
on-going struggle of our security agencies including the Nigerian
Military to find secure prison facilities for arrested insurgents, who
constitute a clear and on-going threat to the peace and stability of
Nigeria
Proposals for Reform
Legal and Institutional Reform
The Minister for Interior has publicly
expressed confidence that the 2017 appropriation for the Prisons Service
will begin to solve many of the problems facing the Nigerian Prisons
service, including the limited transportation infrastructure which is
largely responsible for the inability of the courts to process offenders
quickly.
The Buhari administration should consider the following additional measures:
• Support a review of the Prisons Act
Amendment Bill in the Senate. Not unlike the Nigeria Police, the Prisons
Act was last reviewed in 1972. A Bill to amend the Prisons Act 1972 was
first laid before the House of Representatives in 2001. It is simply
inexplicable that the process of amendment is still on going in 2017.
• Remove the Prisons Service from the
oversight of the Ministry of Interior and place it in the Ministry of
Justice. The Nigerian Prisons Service has for long been supervised by
the Ministry of Interior (formerly Internal Affairs). The Ministry of
Interior jointly supervises the Nigeria Police, Prisons Service and
other paramilitary services, like the fire service, the immigration
service and the civil defence corps. The duties of the Prison Services
are fundamentally different from that of the fire service, immigration
and civil defence Corps. Therefore, a situation where they are treated
in the same way and administered by one administrative body will
continue to militate against the efficiency and effectiveness of the
prisons service.
• Establish a Prisons Service Commission
to take over the functions of the Immigration, Prisons Service and Civil
Defence Board as it relates to the administration of the prisons and
conditions of service of prison officers.
• Appoint a Chief Visitor of Prisons to
conduct inspections of all prison facilities in Nigeria on a regular
basis, respond to complaints by prisons officers and prisoners,
investigate deaths in custody and publish independent regular findings
of his/her work, and make appropriate recommendations for action to the
President and National Assembly.
• In collaboration with the state
governments, undertake an audit of all prison facilities in Nigeria with
a view to identifying persons who should not be in prison.
• Appoint the Controller-General of Prisons as a member of the National Security Council.
• Review existing reports on Prisons reforms in Nigeria with a view to identifying priority intervention.
• Facilitate a national dialogue on the desirability of state prisons leading to possible constitutional amendment.
Federal Ministry of Justice
The mandate of the Federal Ministry of
Justice is two fold. It administers justice in Nigeria and it oversees
state legal affairs.
The Buhari administration has placed a
high value on delivering quality services to the public and has set out
minimum conditions for public service. These include efficiency,
effectiveness and responsiveness to peoples needs. Many of the existing
systems and process, prevent the Justice Ministry from being effective
and efficient.
The Ministry still largely sees itself as
responsible for the administration of the Ministry of Justice and not
the Justice Sector. The Federal Justice Sector Coordinating Committee
that was set up to facilitate coordination between Federal and state
justice institutions, has had limited impact because of lack of support.
The result of this, is the absence of a national consensus on important
justice sector issues.
An important development in 2016 was the
inauguration of a panel of lawyers for the prosecution of high profile
corruption and criminal cases. It is possibly too early, to speak about
the desirability of this initiative. However, one would have thought the
funding for that panel would have gone to the strengthening of the
Office of the Director, Public Prosecutions in the Ministry. This is
more so, given the continuing agitation of state counsel in the
Ministry, for better conditions of service. It would seem obvious that
what Nigeria needs today is an institutionalised, and not ad hoc
Nigerian Prosecution Service, as the principal prosecuting authority for
Nigeria, acting independently in criminal cases investigated by the
police and others. It must be a source of concern to the Federal
Government that the successes achieved by the Nigerian Military in its
fight against Boko Haram, has not been matched by the effective
prosecution of arrested insurgents.
Proposals for Reform
The Buhari Administration may want to
rethink its decision to establish the National Prosecution Panel and
consider whether the panel could potentially weaken the office of the
Director, Public Prosecution. It should be the desire of the
administration to bequeath an effective and efficient prosecution
service within the Ministry of Justice.
In addition the administration should:
• Appoint the Attorney-General & Minister of Justice of the Federation as the coordinating Minister of the Justice Sector.
• Improve the conditions of service of State Counsel in the Federal Ministry of Justice (Implement the harmonisation policy)
• Strengthen and refocus the Federal Justice Sector Coordinating Committee
Corruption in the Administration of Justice
The prevention and combating of
corruption in the justice system is a priority objective of reforms in
the justice sector. In the broader context of the national fight against
corruption, this is fundamental, until corruption within the justice
sector is severely controlled or eradicated, most legal and programmatic
mechanisms put forth to reduce corruption in other sectors of society,
will be significantly undermined. Investigating and prosecuting
corruption across government and private sectors in Nigeria, requires an
efficient justice system.
As stated previously, prosecuting
judicial corruption is an important step towards eradicating corruption
in the justice system, but it is difficult to imagine how this alone
will ensure integrity in the judicial process. Corruption trials are not
removed from the challenges facing the criminal justice system.
Across the justice sector, there is a
culture that attaches no stigma to inefficiency and corruption. The
lukewarm enforcement of an efficient and credible performance appraisal
system linked with an adequate and transparent reward and punishment
mechanism is an important concern. A punishment- and rewards-based
system is critical to minimising corruption.
Strong accountability mechanisms and attractive compensation policies, are essential elements of a corruption-free system.
There is a need for an efficient system
of Public Finance Management, that ensures that the funds budgeted
across the sector and released, are utilised for the intended purposes
and that sufficient transparency allows for public verification. High
standards of financial stewardship should be the norm throughout all
levels of the justice system thereby reducing the opportunities and
incentives for corrupt behaviour.
The non-investigation of allegations of
graft in the appointments and promotions of public officers in the
sector, and that of pervasiveness of forged birth and education
certificates, have been an obstacle towards achieving professionalism
and efficiency across the sector.
Proposals for Reform
The Buhari administration should give serious consideration to:
• Enforcing merit-based employments and
appointments across the institutions in the justice sector and create
appropriate legal and institutional framework to increase job security
and stability.
• Undertake an independent assessment of
corruption involving all stakeholders in the justice sector. Evidence of
corruption, and not just suspicions or popular belief, is required in
order to effectively assess corruption and develop a framework of
anti-corruption policies.
• Enhancing working conditions across the
justice sector, to eliminate the necessity to supplement their paltry
income with bribes.
Funding the Justice Sector
Inadequate funding is one of the key concerns of the justice sector.
Precise figures are unavailable because
of the gap between what is appropriated and what actually gets to the
Institutions. A combination of limited political will and the low
priority placed on the sector has combined to leave the sector in dire
straits. Added to this, is the situation of Nigeria’s economy, which now
requires all institutions to make difficult decisions in all areas of
public expenditure.
Proposals for Reform
The Buhari administration should
• Undertake a survey of budgetary appropriation to the Justice Sector, to determine adequacy and identify gaps.
• Undertake a review of development assistance to the justice sector, to determine content and relevance.
• Establish a joint ministerial committee
to consider the needs of the justice sector in a holistic manner, make
proposals for financial assistance and coordinate project design.
The proposals suggested are not new. Many
of them are contained in the recommendations of the several
Presidential Committees established since 1999 to review the state of
administration of justice in Nigeria, including the proposal for the
establishment of a National Council on the Administration of Justice to
provide high- level policy making, implementation and oversight of
interventions in the Justice Sector The stumbling block has always been
the inability of successive governments to prioritise the justice
sector. The Buhari administration should reverse that narrative.
Nigeria, more than ever, needs a justice system that works in the
interest of Nigerians.
Olawale Fapohunda, Managing Partner,
Legal Resources Consortium & Former Attorney-General, Ekiti State
and Onikepo Braithwaite
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