October 11, 2019

The Due Process Advocates Foundation (DPA), an international human rights and humanitarian organization, founded by Barrister Emeka Ugwuonye, has issued its October 2019 monthly policy statement. This month's statement focuses on reforming the  administration of criminal justice in Nigeria. REFORMING NIGERIA'S CRIMINAL JUSTICE SYSTEM: THE MAIN GOAL OF DPA Corruption has pervaded every sphere of the Nigerian society. The administration of criminal justice is not spared. Corruption is so deep and entrenched from the moment you encounter law enforcement personnel through the entire process. Judges determined to punish the innocent will deny you bail and subject you to imprisonment, sometimes for a period longer than would be the case if you had committed the offense. The abused in the administration of criminal justice in Nigeria is many times worse today than during the military rule. If you want to know how bad it is, look at our prison statistics. Over 80% of people in prison have no business being in prison. They are in prison because many judges actually subvert the constitution. They unconstitutionally deny people bail and leave them for years in prison awaiting trial. The only thing it will take for you to end up in prison for a very long time is that a police officer is malicious enough to accuse you, even without an iota of evidence. Indeed, it is not supposed to be so, even at the level of the police. Without corruption and incompetence, the police would be professional and ethical in the way they conduct investigation and frame charges. But where the police fail, noncorrupt and competent judges should be able to check and prevent the harm caused by police failure. What we have in Nigeria is worse failure at the judicial level. A person abused by the police is better off paying the police and settling with them than to hope that the court would rectify and correct the abuse. In fact, what often happens is that the corruption or failure at the judicial level worsens and exacerbates the harm initiated at the police level. Nowhere is this more obvious than in the judicial attitude and practice on bail. It is DPA's view that under our constitution, a judge cannot deny a person bail. The discretion of the judge is limited to the imposition of conditions for bail. As long as the judge has discretion to impose bail conditions, he or she does not have the power to deny bail. To deny bail is to deny himself or herself the discretion to impose conditions. A judge does not have the discretion to deprive himself or herself of a discretionary power granted by law. She can only exercise one way or the other a discretion lawfully granted, but not to shut himself or herself totally out of the exercise of discretion. If a judge feels that a person is not trusted to attend his trial on his own or that he is a flight risk,  such fear or concern shall not result in outright denial of bail, but rather it should be reflected in the terms and conditions of bail. Example: Omoyele Sowore's case. In Sowore's case, a highly skeptical judge still granted bail, but imposed very stringent conditions of bail that Sowore has not been able to meet. The bail conditions imposed in Sowore's case are a reflection of the judge's fears that if released on bail Sowore might not be available for his trial. It would have been wrong for the judge to have taken the expedient route of denying him bail. To deny a person bail just because you fear he might not be available for his trial is to admit that the judge lacks the ability to calibrate a set of bail conditions to allay the fear. It is the height of in competence for a judge to chose the lazy option of not dealing with the problem at all. It is a crime to deny bail just to punish the accused. It is incompetence to do so just because you lack the time, patience or intelligence to design a suitable set of bail conditions. One may wonder if there is any difference between denial of bail and imposition of impossible bail conditions. Indeed, Nigerian Supreme Court has held that excessive bail condition amounts to no bail. Yet there is a great difference between the two. When the problem is that of excessive bail conditions, you can always seek variation of the conditions. It is much easier to vary the terms of bail than to appeal against denial of bail or to wait and file fresh bail application. When a judge has admitted that you can be on bail but imposes conditions too stringent,  all you need to do is to propose convincing or acceptable terms of bail and ask for variation. In such case, the judge only needs to be satisfied that you will be available for your trial. On the other hand, when denied bail, the judge has, in fact, convicted and sentenced you and the issue is no longer whether you will be available for your trial or not. It is a mean-spirited measure of punishment for an offense you have not even been tried for. And it is unconstitutional. When it is done for any other consideration apart from an honest abidance with the law or in the interest of justice, it becomes an act of corruption. What are the factors that lead to abuse of judicial powers? There are three main reasons: First among these reasons is outright corruption - Money or other favors are given or promised to the judge if she rules in a certain way or to a certain outcome. Second reason is incompetence or lack of qualification. If an unqualified person becomes a judge, often because his appointment was a product of corruption, the tendency is to conceal the incompetence by always ruling against the weaker party, who is less likely to take any action to resist a wrong verdict. Equally, an incompetent or unqualified judge can only advance in his or her career by volunteering to favor the powerful, regardless of the position of the law. Third reason is lack of judicial independence. This could be personal to a judge or generic to the entire court or the judiciary as a whole. Evidence exists to show that judges n Nigeria could be arrested and prosecuted and dismissed contrary to the law and the Constitution. This causes many judges to fear for their lives, their liberty, the security of their jobs and other problems that might flow from the displeasure of the police or other agencies from the Executive branch of government. Many Nigerian judges face a combination of these problems and that turns our justice  system into a system of jungle justice. Massive reform is necessary to correct the problems highlighted here.   DPA Policy Statement October 11, 2019