Justice Sector Reform: Expectations from the Incoming Administration

The vast majority of Nigerians sent one clear message to politicians, through their votes in the February 2023 Presidential elections. They are displeased with the way Nigeria is heading.  The fact that only 24 million Nigerians (out of an estimated 87 million) even bothered to vote, must for discerning observers, tell a story of a people burdened by a lack of faith in the ability of the political process to respond to their concerns. This displeasure cuts across all facets of Nigeria’s socio- economic and political lines.  The economy and state of our nation’s security are twin concerns that have, among others, led to the daily exodus of our brightest and best. More serious, is the issue of rampaging terrorists, bandits and kidnappers, that has led to an alarming number of deaths of our citizens, in both rural and urban Nigeria.  The Buhari administration promised improved security, economic growth and strong anti-corruption measures. To be fair, it would be uncharitable to insist that no progress has been made. There has undoubtedly, been progress. The reality however, is that the quantum of progress made has simply not been able to meet up with the expectations of Nigerians.  One of the sectors where this gap is so glaring, is in the area of administration of justice. Truth be told, such is the state of the justice sector today, that it will take a brave person to argue that Nigeria has made significant developments in this sector. Citizens cynicism about justice administration, trumps any political statement or government reports to the contrary. One of the authors of this piece has, since the inception of the Fourth Republic in 1999, consistently drawn the attention of successive governments, to the urgent need to focus on reforms of the justice system. We have argued that the system inherited from years of military rule cannot, by any stretch of imagination, be fit for the purpose of a democracy.  In very  simple words, we argued that the justice system is the pillar on which a democracy system rests. It will be wishful thinking to imagine that aside from law and justice, goals of good governance, economic growth and security can be achieved, without an effective and efficient justice system.  We said in several write-ups that what is required, is a holistic and radical reform of all aspects of our justice system. It is depressing that in 2023, more than two decades after the first publication on this issue, we are still writing about the same issues. Again, there have been developments. Progressive laws have been enacted, administrative measures have been undertaken, and there have been no dearth of policy statements and directives. The problem as identified in our many editorials is that these interventions are ad-hoc and suffer from a combination of limited political will, including government’s poor understanding of 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 to be important stumbling blocks towards achieving reforms in this sector. Moreover, many of these interventions fail to take into consideration the need for a national approach that recognises the necessity of a national consensus, including effective cooperation between the Federal Government and States in matters of justice administration. This limited collaboration between the Federal and State Governments, is a problem. The problem of leadership. With no one institution in the Federal Government setting an agenda for best practice, many State Governments have filled the leadership vacuum by running ahead with their different ideas of justice sector reform. With no standardisation and quality evaluation, any wonder then, that for vast majority of Nigerians, Government’s interventions in the justice system are a mirage.  The incoming administration of Bola Ahmed Tinubu, again provides another opportunity for change. The present day challenges confronting the sector are without doubt, intimidating. Two decades of lack lustre interventions in the justice sector, must necessarily have consequences. The President-Elect should know that, Nigeria cannot afford another round of quick and dirty interventions in the manner she administers justice. The goal for a Tinubu administration is self-evident – take the administration of justice system in a different direction. A direction never seen in the history of Nigeria. One that leads to building a justice system which is affordable, efficient, independent, transparent, professional and accountable to Nigerians. One that ensures the rule of law and the observance of human rights, and contributes to reclaiming the trust of Nigerians and the International Community in our Justice system.     The building blocks, are already in place. There is nothing that needs to be said or done about reforming the justice sector, that has not been a subject of national discourse since Nigeria’s return to democracy in 1999. Several high level committees have been set up by successive administrations, to review specific institutions within the justice sector. Every aspect of the infrastructure of our justice system, has undergone fundamental rethinking. There is a national consensus that our approaches to policing, adjudication, imprisonment and access to justice for the poor and indigent, needs change in significant ways.  What is now required is to put these blocks together in an achievable, time-bound and costed plan.  Justice sector reforms stand a better chance of success, when the Government has a clearly stated plan setting out the official vision of the reform objectives, and committing Government to specific interventions necessary to realise that vision. This is an important reference point, for any strategic approach to any justice sector development plan.  To be sure, the strategic reform of the justice system will be a process, not an event. it must be properly planned, carefully managed and the process must be consultative and inclusive of all Federal and the States justice institutions. Nevertheless, change must be accelerated to keep up with the expectations of Nigerians, particularly those of the poorest and most vulnerable communities.  Today’s special edition, is a call to action. The  President-Elect should not wait until May 29 or beyond, before he begins to identify and articulate his plans for the justice sector. It is time to respond to those who firmly believe that the situation of our justice system is a basket case, and that nothing good can come out of it. If there is any sector that needs reinvention of the President-Elect’s track record as Governor of Lagos State, that sector is the Justice Sector. Immediate past Attorney-General of Ekiti State, Olawale Fapohunda, SAN and Editor of This Day Lawyer, Onikepo Braithwaite, have summarised our many write-ups on this issue, with lots of repetition for emphasis. We propose various legal, policy and administrative interventions for managing the transformation of key justice institutions. This is by no means an exhaustive memorandum. The things- to-do list, is a long one. The thematic areas of interventions, are as important.  We are convinced that the starting point must necessarily be institutional reforms – The Judiciary, Police, Prisons and Access to Justice Institutions. These institutions are the vehicles for reforms. 

The Judiciary

‘While the Technical Committee on Judicial Remuneration recognises the enormity of the economic challenges facing the nation, there is now a compelling need to increase judicial salaries. It is our view that judicial salaries must be set at a comparatively high public-service level, in order to remove both the temptation to corruption and public contemplation of the possibility of such temptation’. 

-Report of the Federal Government Technical Committee on Judicial Remuneration, 2018

The state of our Judiciary has recently come under public scrutiny, more than any time before in the history of Nigeria. This is because the number of cases brought to the courts and the number of legislative acts the courts must apply, have increased dramatically. 

The vision of Nigeria’s Judiciary as oft stated, is to strive to be respected throughout Nigeria and the world for its excellence, for the independence of its Judges, and for its delivery of equal justice under the law. The National Judicial Council (NJC) by its several declarations anticipates a future in which Nigeria’s Judiciary is noteworthy for its accessibility, timeliness, and efficiency. It attracts to the Bench the nation’s finest legal talent; is an employer of choice, providing an exemplary workplace for a diverse group of highly qualified Judges and employees; works effectively with the other branches of government; and enjoys the peoples trust and confidence. 

The President-Elect must be aware that the main issue that confronts our nation’s Judiciary today, is that of judicial independence. How to fulfil its role in relation to the other powers of the State, society in general, and the parties to litigation. Judicial Independence, is the fundamental requirement that enables the Judiciary to safeguard democracy and human rights.  The independence of the Judiciary is not a prerogative or privilege granted in the interest of Judges, but in the interest of the rule of law and of all those who seek and expect justice. 

The Judiciary faces certain inherent problems, which show the weaknesses and defects of the system. These require immediate reforms and accountability. Some of these weaknesses are internal, with profound implications on justice delivery. Congested caseload, appointment of Judges, poor infrastructure, to mention but a few. However, in our view, the biggest threat to judicial independence in Nigeria, is the tragic situation of judicial remuneration and conditions of service. The inability of successive governments to make progress on the issue of fair and reasonable judicial salaries, has in many ways, dampened the morale of the Judiciary. 

In previous publications in This Day Lawyer, we argued that the discussion around judicial corruption, ignores the issue of fair and adequate conditions of service for judicial officers. We said it is ridiculous and unrealistic to continue to insist that a call to the Bench, is one to national service and penury. The guarantee of adequate conditions of service, is not meant for the benefit of the Judiciary. Rather, financial security is a means to the end of judicial independence, and is therefore for the benefit of us all.  We have called for a review of judicial salaries, pensions and benefits, as an important component of judicial reform. 

We draw the attention of the President-Elect to a key finding of the Federal Government Technical Committee on Judicial Remuneration and Conditions of Service (TCJR) which stated in its 2018 report that ‘from May 1999 to March 2011, the Federal Government has reviewed the Public Servants and Political Officers salary on four occasions. Specifically, in May 2000, 2005, 2007 and 2011. Judicial officers have been on the same salary structure for almost 15 years, whereas the salaries of the entire workforce, the Military, Intelligence and other Chief Executives in Nigeria, were reviewed in 2011. This has resulted in a situation where some of the Public Office holders whose salaries prior to 2011 were below that of the Judicial Officers, now earn more than them. Presently, the major parameters for pay fixing and pay relativities seem to have been abandoned, in the consideration of the salaries of Judicial Officers. The present salaries of judicial officers, is evidence of a downgrade in the ranking of their job positions.’

This finding by the Federal Government appointed Committee, that Judicial officers have been on the same salary for more than a decade gives the most important justification for the urgent review of judicial remuneration. Historically, there has always been an informal link between judicial salaries and senior civil service salaries.  There is now an urgent need to delink judicial remuneration from that of the civil service. De-linking judicial remuneration from that of the civil service would not only strengthen the perception of judicial independence, but would also provide the necessary safeguard and reassurance to Judges. 

In addition, in recognition of the independence and uniqueness of the Judiciary, we recommend that Judges should be remunerated according to an independent salary scale to be known as the Judicial Service Pay Scale (JSPS). This will enable judicial salaries to be subject to regular reviews, that are distinct from that carried out in respect of the civil service. Furthermore, we propose a separate legislative scheme for salaries, allowances, conditions of service and retirement benefits for judicial officers. We support the proposal of the TCJR for a ‘Judicial Office Holders Entitlements Bill’ and the requisite constitutional amendment, to create a Judicial Office Holders Entitlements Panel to replace the Revenue Mobilisation Allocation and Fiscal Commission as it relates to the Judiciary.

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Nigeria Police Force and Police Reform 

“A culture that attaches no stigma to corruption, is an ingredient for inefficiency and corruption. The lukewarm enforcement of an efficient and credible performance appraisal system, linked with an adequate and transparent reward and punishment mechanism within the Nigeria Police Force, is an important concern”

-Practical Steps to Reforms of the Administration of Justice in Nigeria 2010 – Co-authored by Augustine Alegeh, SAN & Olawale Fapohunda, SAN

Advising successive governments on the need to undertake meaningful Police reforms, has become a frustrating exercise for This Day Lawyer. One may be tempted to conclude that, there is a deep-seated and strong resistance to the idea of Police reforms in Nigeria. It is sad to admit that, over the years, we have simply had limited political will to undertake far-reaching reforms that are required, to ensure that we have a Police service that works in the interest of our citizens. Instead, we have had more than two decades of debate on policing and reform, facilitated by multiple high level committees. 

Citizens’ expectations that rapid progress will be made after the #EndSARS protests, have regrettably, not been realised. No doubt the establishment of Judicial Panels of Inquiry into rights abuse by some officers of the now disbanded Special Anti-Robbery Squad (SARS) across the States were necessary, for the purpose of reversing a culture of impunity that largely characterised the operations of SARS. This cannot by any stretch of the imagination, be seen to be the vehicle through which sustainable Police reforms will be achieved. 

In 2023, we are still discussing. Meanwhile, public perception of corruption, impunity, absence of accountability, incompetence, and failure to control the law and order situation plague the Police Force. The present challenge before the Tinubu Administration, is to reverse this perception and transform the Nigeria Police into a true public servant, capable of elevating the sense of security of Nigerians.

There is nothing that needs to be said and done about Police and policing reform in Nigeria today, that cannot be found in the reports of the many government-enabled high-level commissions on Police, many dating back to at least 1999. Our reality is that, all of these reports are gathering dust on the shelves of several government institutions. These Reports, without exception, are as relevant today, as they were when they were written. A casual review of the reports, will find similarities in their findings and recommendations. They all agreed that the Nigeria Police Force as it  presently exists, is incapable of meeting the security needs of Nigerians. 

The Reports identified several areas, in which the Nigeria Police were failing Nigerians. Some of these areas include (a) Limited capacity to collect and analyse preventive intelligence, especially pertaining to serious crimes. 

(b) Poor Criminal Investigation ability. This was identified, as one of the reasons behind the under-reporting of crime in Nigeria. Unfortunately, the so-called premier investigation agencies like CID were said to be underperforming.

(c) Inadequate personnel. The Nigeria Police continue to have huge vacancies. The Reports noted that efforts to recruit, have largely been politicised. While even in those cases where recruitments were achieved, the process and quality of those recruited, were said to leave a lot to be desired. The Reports identified an under-strengthened Police Force, as an immediate outcome of a poor recruitment policy.

(d) Outdated arms and equipment. The Reports stated that our Police Force continue to use obsolete equipment and arms, and lack the latest technology that would help in investigation and intelligence gathering. 

(e) Lack of proper training. The Reports specifically noted that, existing Police Training Academies are poorly staffed, and often don’t have the necessary facilities in terms of equipment and technology. This is particularly regrettable, given that well-trained and motivated human resources are key to any Police Force’s success. 

(f) Poor Police infrastructure. The Reports noted the unsatisfactory practice of housing Police stations in impoverished accommodation.

(g) Police-Public relations. The Reports noted that Nigerians view the Police as corrupt, inefficient, politically partisan and unresponsive. These perceptions of the Police are largely based on citizens’ unhappiness with the manner the Police handles complaints, particularly against abuse by its officers.

The reform of the Nigeria Police Force will require a wide range of improvements, including a holistic review and redefinition of the role, function, as well as organisational restructuring aimed at making the Police less militaristic. 

It is our considered view that, the key resource available to the Nigeria Police to fulfil its mandate, is the human resources at its disposal. All the Police reform initiatives aforementioned, recommended a holistic review of the conditions of service of Police officers, to undercut the incentive for corrupt behaviour. President Buhari recently approved, an upward review Police salaries across board. There is little evidence to show that anything has changed . 

Aside from salaries and allowances, attention should be given to other welfare benefits. For example, improvement of Police medical facilities, housing, Police schools to be refurbished and upgraded, to enable them cater for the children of Police officers; Police insurance and pension benefits to be improved, and made easily accessible to next of kin. 

It is our respectful view, arising from our many failed attempts at Police reforms, that transformative reforms in the Nigeria Police can only be achieved through deliberate Presidential intervention. Previous ministerial interventions, have always stopped at the level of the host Ministry. Current efforts to saddle the leadership of the Nigeria Police with the responsibility of leading Police reform initiatives, is almost guaranteed to fail. The Police cannot reform itself. Similarly, the existing Police oversight institutions, the Ministry of Police Affairs, Police Service Commission and the Police Council, have all proved incapable of setting an actionable agenda for Police reform. 

The President-Elect should commit to leading the Police reform initiative. As a first step, the President-Elect should convene a review of the existing Reports of all previous Commissions and Committees on Police reform, including those of the Constitutional Conferences, with a view to identifying immediate to long term key intervention areas. All these reports contain bold and practical proposals, that can form a working document for an action plan for Police reform.

Nigerian Correctional Services and Prisons Reform

“… The State Controller of Correctional Service in Conjunction with the Superintendent, shall have the power to reject more intakes of inmates where it is apparent that the Correctional Centre in question is filled to capacity”

-Section 12 (8) Nigerian Correctional Service Act, 2019

The vision of the Nigerian Correctional Service (NCS) among others, is to create a Correctional  Service in Nigeria that is able to contribute to meeting the  challenges of ensuring a secure and peaceful Nigerian society, through the implementation of humane penal programmes. To establish a credible correctional service, which through excellent penal practice, seeks lasting change in offenders’ attitudes, values and behaviour, and ensure successful reintegration into society.

In furtherance of this vision, the most significant development relating to the administration of prisons in the last eight years, was the creation of a proper legal context for humane prisons system. The Prisons Act 2004 was repealed, and in its place,  the Nigerian Correctional Service Act 2019 was enacted. The Act provides for the proper and efficient administration of prisons, protection of human rights of offenders, and upholding of international standards. 

It is trite that our correctional centres today, are far from the vision. Basically, our correctional centres suffer from a chronic illness afflicting our criminal justice system. In very basic terms, they suffers from a lack of humanity. Our correctional centres have, over the years, been a source of concern due to overcrowding, poor or non-existent hygienic conditions, under-staffing, lack of adequate medical care, inadequate conditions for female and juvenile detainees, poor administration, long detention of those awaiting trial and limited access to legal advice and representation. These have frequently led to poor health conditions, and frequent jailbreaks. Since 2015, there have been at least 18 reported prison breaks in Nigeria. This is cause for concern. Reform intervention in our correctional centres, should no longer be seen only as a penal reform issue, but one of national security. 

Any meaningful reform of our penal system, will require sustainable reforms in other components of the criminal justice system – The Judiciary, the Police and the Ministries of Justice. This is more so specifically, with reference to dealing with the problem of overcrowding caused by remand inmates. The NCS data shows that Nigeria’s correctional centres have the capacity to hold 50,083 inmates, but they currently hold 75,504 inmates. The data also revealed that of the 75,504 (as at 27.2.2023) inmates in the Facilities, more than 50,822  are awaiting trial. That equates to roughly 73% of the total. While only about 19,234 inmates have been convicted, accounting for 27% of the total. As a result, at least 7 out of 10 inmates are serving time, without being convicted. Prison congestion has directly impacted on the quality of custody of inmates, including housing inmates in squalid and congested cells. Congestion is also a hindrance to the attainment of the mandate of the correctional service, in terms of inmate training and rehabilitation.  

We firmly believe that the reform of our penal regime, should include a critical review of prison administration. Any improvement in conditions of inmates, will be dependent on Correctional Service officers having a pride in their work and a proper level of competence. The conditions of service under which the prison staff work, are grossly inadequate. The pay is poor and cannot match the dangers, emotional stress and social isolation to which the officers are exposed. It is obvious that inadequately motivated staff cannot find satisfaction in their jobs, neither can they be expected to perform optimally. 

Achieving an effective response to prison congestion and the review of the conditions of service of correctional service officers, will be a process. However, an area that requires immediate intervention, is the oversight of the Correctional Service. The Correctional Service has for long, been supervised by the Ministry of Interior (formerly Internal Affairs). The Ministry of Interior jointly supervises other paramilitary services like the Fire Service, the Immigration Service and the Civil Defence Corps. This Day Lawyer, in several of its previous editions, has argued that the duties of the Correctional Service 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. We therefore, urge the President- Elect to consider removing the Correctional Service from the oversight of the Ministry of Interior, and place it under the Ministry of Justice. This will be an important starting point, for penal reform.  

Access to Justice Institutions 

“The system of justice that we strive for will – Provide fair and equal access to justice for all Nigerians, regardless of their ethnic group, gender, marital status, age, economic status, disability, religion, belief, culture, language or any other attribute’”

Justice Vision 2015 – A Publication of Federal Ministry of Justice, Nigeria 

The highlights of the Federal Government of Nigeria 2022 Multidimensional Poverty Index (MPI) survey, reveal that 63% of persons living within Nigeria (133 million people) are multidimensionally poor. The National MPI is 0.257, indicating that poor people in Nigeria experience just over one-quarter of all possible deprivations. 65% of the poor (86 million people) live in the North, while 35% (nearly 47 million) live in the South. Poverty levels across States vary significantly, with the incidence of multidimensional poverty ranging from a low of 27% in Ondo to a high of 91% in Sokoto. Multidimensional poverty is higher in rural areas, where 72% of people are poor, compared to 42% of people in urban areas.

Poverty limits people’s access to justice, and their ability to resolve conflicts and deal with everyday legal problems. The administration of justice system in Nigeria, does not empower poor people. This is  too often a source of frustration, disillusionment, and disempowerment for them, as well as a direct reflection of prevailing social inequality and exclusion. Promoting equal, meaningful access to legal representation in the Nigerian justice system is critical to ending poverty, combating discrimination, and creating opportunity.

It is for these reasons, that it is necessary for the President-Elect to pay special attention, to the status of Access to Justice institutions in Nigeria. The key institutions that require special attention are the Federal Ministry of Justice, the National Human Rights Commission and the Legal Aid Council of Nigeria. 

Federal Ministry of Justice

The business of the Ministry of Justice covers  virtually every facet of the administration of justice, including the protection, promotion of human rights and the provision of all legal services to the Federal Government. The Ministry still largely sees itself as responsible for the administration of the Federal Ministry of Justice, and not the Nigerian Justice Sector. This has led to lacklustre coordination, of Federal and State Justice institutions. The result of this is the absence of a national consensus, on important justice sector issues. The demand for enhanced conditions of service by State Counsel in the Federal Ministry of Justice, which has been unrealised over the years, constitutes the single biggest challenge facing the Federal Ministry of Justice, in view of the negative impact on other aspects of its operations, including personnel motivation and posting preferences by staff. The non-resolution of this demand, is an important obstacle to achieving access to justice for the poor. 

The Legal Aid Council 

The Legal Aid Council of Nigeria (LACON), is a statutory entity under the Federal Ministry of Justice. The Council’s mandate, is to administer an efficient and coordinated legal aid system in Nigeria.  LACON among others, administers a Legal Aid Scheme, which provides legal aid for citizens. Currently, criminal matters are entitled to Duty Counsel or Court Assignments.

The Legal Aid Council Act 2011, in its current state, is too restrictive on the kind of cases the Council   can intervene. Such criminal offences as Trafficking in Persons, drug related offences, kidnapping, terrorism, illegal possession of firearms, traffic violations, are outside the mandate of the Council. The Act gives wide powers to the Council to visit prisons and other places of detention, with a prescription that to deny access would be a criminal offence. LACON has recently increased its nationwide coverage, but it is still not present in many LGAs. This is not only a question of money, but also of the lack of Lawyers to provide representation in rural areas, and the absence of a formal requirement for Lawyers to do pro bono work.

The annual appropriation of the Legal Aid Council, has dwindled over the years. This places a responsibility on the Federal Government to rethink its current investment in the legal aid scheme, and to decide whether it is adequate or not.

National Human Rights Commission

The National Human Rights Commission was established by the National Human Rights Commission  (NHRC) Act 1995, as amended by the NHRC Act 2010, in line with the resolution of the United Nations General Assembly, which enjoins all member States to establish national human rights institutions for the promotion and protection of human rights.  The Commission serves as an extra-judicial mechanism, for the enhancement of human rights. Its establishment is aimed at creating an enabling environment for the promotion,  protection and enforcement of human rights. It also provides avenues for public enlightenment, research and dialogue, in order to raise awareness on human rights issues. The Commission is largely seen as an isolated solution, to the problem of human rights violations. Limited cooperation from Ministries, parastatals and agencies, have hampered its ability to work effectively as part of an overall framework of democratic institutions. There has been some concern about overlapping mandates between NHRC and the LACON, specifically in relation to prison work. Improved coordination should therefore, be the focus of legislative reform and   administrative action. The NHRC is clearly under-funded. This lack of adequate and appropriate funding, has in no small way, contributed to public disappointment with its limited activity and reach. There is little point in government establishing a human rights commission, if it is then deprived of the resources needed to ensure performance.

Implementation and Monitoring

The goal of a justice system capable of upholding the principles of the rule of law remains largely a challenge, due, in large part, to a fragmented institutional structure and the resulting lack of co-ordination among the numerous levels of government and relevant justice institutions. The idea of a single forum in which the three arms of government, agencies with a justice sector mandate and civil society organisations meet to discuss and agree on concrete interventions for the justice sector, has long been proposed. The need to ensure the reinforcement of recent reforms in the justice sector, and the prompt follow-up of outstanding reforms requires an implementation and monitoring body. 

We urge the President- Elect to consider the establishment of a National Council on the Administration of Justice (NCAJ). The NCAJ should be established to provide high level policy making, implementation and oversight of interventions in the Justice Sector. Its membership should include State and Non-State Actors from the justice sector. Its mandate should include ensuring coordinated, efficient, effective, consultative and implementation of key reforms in the administration of justice system.

Olawale Fapohunda, SAN and Onikepo Braithwaite