Reforming Administration of Criminal Justice in Lagos State

These are the comments made by Femi Falana, SAN on Hon. Justice Rahman Oshodi’s Paper “Enhancing the Criminal Justice System in Lagos State: A Comprehensive Approach to Reform” delivered at the Lagos State Government Justice Sector Summit held on May 28, 2024. The Learned Senior Advocate suggests ways and means in which administration of criminal justice in Lagos can be improved, also with simple amendments to the ACJL 

Introduction 

T his intervention will briefly review the paper of the Honourable Justice Oshodi, and proceed to make comments aimed at exploring innovative strategies and best practices for enhancing the administration of justice, with a focus on improving civil justice for economic, growth and protection, increasing efficiency, and expediting criminal trials. Permit me to respond to the principal issues addressed by his lordship in the paper.

Introduction of Administration of Criminal Justice Law by Lagos State and amendments

I agree with his lordship that “The introduction of the Administration of Criminal Justice Law (ACJL) in 2007 and its subsequent amendments have aimed to streamline criminal proceedings, reduce delays, and protect defendants’ rights”. With respect, the law enforcement agencies have refused to comply with the amendment that has prohibited the parade of criminal suspects in Lagos State. For instance, while lowly placed suspects who are alleged to have stolen tubers of yam are paraded, politically exposed persons charged with looting the treasury to the tune of billions of Naira are dared not paraded, as their right to dignity of the person is respected by the State.

Stay of Proceedings

It is the view of his Lordship has that Section 273 of the Administration of Criminal Justice Law (ACJL) which abolished stay of proceedings has improved criminal trials in Lagos State. No doubt, the provision was designed to remove criminal proceedings from the control of a few privileged citizens who were in the habit of filing interlocutory appeals and suspending their trials by filing stay of proceedings in the trial courts and appellate courts. But, there are instances when genuine preliminary objections may terminate a frivolous charge.

Section 374 of the ACJL which allows a trial court to simultaneously determine the validity of charges and substantive issues rather than dealing with them separately, ought to be reviewed. Even though the provision has been endorsed by the Court of Appeal and the Supreme Court, it ought to be amended to allow Judges to deliver interlocutory rulings, provided that the determination of such interlocutory applications will not stay the proceedings. But, if the preliminary objection succeeds the criminal case should be terminated instead of wasting resources of the State and the time of parties and Lawyers, on a charge that may be dismissed at the end of a trial. 

Trial of Criminal Suspects in Absentia

His Lordship is satisfied with Section 235 of the ACJL 2021 which allows “for the trial and conviction of Defendants in absentia under certain circumstances, such as when the Defendant has been granted bail but fails to appear in court without reasonable explanation. With respect, Section 235 requires an amendment, to permit trial in absentia when a suspect is on the run. Even though the law has recognised the service of a criminal charge on the Lawyer of the Defendant, it is suggested that there is substituted service by pasting same on the last known address of the Defendant. 

Plea Bargain

In listing the advantages of plea bargain, his Lordship opined that “Apart from quick case resolution, it can also provide certainty and predictability for Defendants, who can negotiate a known outcome rather than face the uncertainty of a trial. Also, Defendants who plead guilty may receive non-custodial sentences, or shorter terms of imprisonment”. As the majority of criminal suspects are not aware of the provisions of the ACJL relating to plea bargain, they have not been able to benefit from the procedure. It is therefore, suggested that the Ministry of Justice and the branches of the Nigerian Bar Association in Lagos State, should embark on a campaign to popularise plea bargain. 

Decongestion of Correctional Centres

It is the belief of his Lordship that Lagos State has made notable progress in addressing some of the challenges in the criminal justice system through various reform initiatives, and that the establishment of specialised courts and promoting plea bargaining and adopting restorative justice has contributed to decongesting courts and correctional facilities. While the reforms are noted, it should be pointed out that the congestion of the correctional centres is on the increase as a result of the remand orders issued by Magistrates, based on the applications of the Police and other law enforcement agencies. 

Pretrial Detention of Suspects 

Rich suspects are usually admitted to bail, either by law enforcement agencies or trial courts. But, poor suspects are subjected to prolonged pretrial detention on the orders of Magistrates, while awaiting the legal advice of the Director of Public Prosecution. In many cases, poor suspects are held in prison custody for years, because the legal advice of the DPP is not forwarded to Magistrate Courts by Police prosecutors. Permit me to cite a few cases where poor suspects have been detained for years, due to lack of communication between the office of the DPP and Police prosecutors.

In Alade v Nigeria (Suit No. ECW/CCJ/JUD/10/12) the Community Court of Justice of the Economic Community of West African States (ECOWAS) found that the Applicant was arrested in March 2003 and detained on a holding charge on the orders of a Magistrate in Lagos for over nine years without being returned to court, either for a trial or for a review of his detention. The court declared the detention represented a violation of his rights under Article 6 (the right to personal liberty) and Article 7 (the right to a fair trial) of the African Charter on Human and Peoples’ Rights. The court also ordered his immediate release and awarded him damages of N2,700,000 ($17,000).

In November 2023, an Ikeja High Court, released three men, Peter Edialu, Godspower Friday, and Bayo Segun, after they had been held in custody for six years without trial. They were in detention for six years awaiting the Department of Public Prosecution’s advice, but nothing came forth. 

About two weeks ago, the Court of Appeal sitting in Lagos freed a man, Idris Musa who was arrested in 2010 by the Police over the murder of one Ali Kolo and abandoned in Kirikiri prisons for 14 years without trial. At the time of his release Musa has developed a mental disorder in prison.

It is high time the power of Magistrates to issue remand orders was reviewed, in line with the provisions of the Constitution. According to the ACJL, upon the arrival of a suspect in a Police station, the Police shall inform the next of kin of his/her place of detention and ask for the details of the suspect’s Lawyer. The suspect shall be informed of the charge against him/her. If the suspect does not have a lawyer, the Police shall request the Legal Aid Council to provide a Lawyer to represent the suspect, even before making a statement in the Police station. The suspect shall be informed of other rights to which he/she is entitled under the Constitution and the ACJL.

Even though the suspect is presumed innocent until the contrary is proved in a court of law by the State, the detaining authorities are permitted to apply for an order to remand the suspect. And, without hearing from the suspect, a Magistrate shall grant the application and order his/her remand for a renewable period of 30 days. It is submitted that the order for the detention of a suspect for 30 days or more, without affording him/her the opportunity to react to the allegation made by the Police against him/her, constitutes a flagrant abuse of the fundamental rights of the suspect to personal liberty and fair hearing guaranteed by Sections 35 and 36 of the Constitution respectively.

Bail in Criminal Cases

The Constitution has liberalised bail for suspects and Defendants, involved in criminal cases in Nigeria. On account of the decision of the Court of Appeal in James Ibori v Federal Republic of Nigeria (2009) 3 NWLR (Pt 1128) 247, the granting of bail has become automatic in Nigeria. Regardless of the seriousness of an offence, a trial Judge is legally bound to consider an oral application for bail, if there is enough material evidence before the trial court. See M.K.O.  Abiola v Federal Republic of Nigeria. (1995) 1 NWLR (Pt 370) 155.

Upon arraignment in a criminal court, a Defendant files a bail application. With or without any basis, the Prosecution files a counter-affidavit while the defence counsel files a reply on points of law. Arguments are taken, and a considered ruling is delivered by the trial court. Except on a very rare occasion, the bail is invariably granted, with or without conditions. Since bail is usually granted by trial courts, it is suggested that the prosecution and defence counsel should agree on the bail conditions to be imposed on a Defendant pending trial. If an agreement is not reached by counsel, the trial court should be invited to impose bail conditions deemed fit in every criminal case, and then fix a hearing date for the case.

The following are recommendations to ensure that remand proceedings and pre-trial detentions, do not continue to slow down criminal trials:

1. In line with Sections 106 of the ACJA, Kano and Delta State Government have abolished the prosecution of criminal cases by lay Police prosecutors. We suggest that more Lawyers be employed by the office of the DPP, to meet the enormous legal responsibility of the office in giving the required advice. The Lagos State Government should phase out prosecution of criminal cases by Police officers without any further delay.

2. The Chief Judge should ensure that the monthly visits to all Police stations in the State are done by Chief Magistrates, in line with the provisions of the ACJL and the Police Establishment Act. The members of the Human Rights Committee should accompany the Chief Magistrates, during such visits. The visiting Chief Magistrates are empowered to grant bail, or order the release or arraignment of any suspects detained in a Police station. Judges designated by the Chief Judge, are empowered to conduct similar visits to other detention facilities in the State.

The 2023 Alteration of the Constitution, has transferred prisons from the exclusive legislative list to the concurrent legislative list. Thus, the Fifth Alteration (No.31) Act has empowered the National Assembly and State Assemblies to make laws establishing correctional services and custodial facilities, as well as authorities to manage them. Owing to prison congestion in Lagos State, the Government should establish a correctional centre. However, the plan of the Lagos State Government to relocate the Ikoyi Correctional Centre to Epe, should be shelved for security reasons. The perennial traffic jam on the Lekki-Epe road, may encourage the escape of prisoners. It is suggested that the Ikoyi Correctional Centre be closed down, while the facilities in Kirikiri Correctional Centre are upgraded to accommodate the inmates in the Ikoyi Correctional Centre.

The Leadership Role of Ministry of Justice

The Lagos State Ministry of Justice should take the lead, in decongesting our courts. To achieve that objective, the Ministry has to demilitarise the psyche of its Lawyers. 

Ineffective Utilisation of Technology by the Courtd

The Lagos State Judiciary operates the E-filing system which took off on September 1st, 2022. It is a feature in the Lagos State High Court Judiciary Information System (JIS). However, despite the introduction of the electronic filing system, the filing procedure of cases is still cumbersome and slow in Lagos State. Instead of speeding up the processes, the e-filing procedure has brought frustration in filing cases and getting cases assigned to courts.

Also, the Judiciary needs adequate funding to procure all that is necessary for a seamless operation of virtual operations. There is also the need for the training of all judicial staff involved in the e-process, to fully utilise the process and for a speedy and efficient dispensation of Justice.

Conclusion

No doubt, many of the recommendations adopted in this Summit will require amendments of the ACJL of Lagos State and the Civil Procedure Rules. The Lagos State Ministry of Justice should ensure that the input of the Judiciary and the Bar is considered, before the passage of the Civil Justice Bill pending in the House of Assembly. In contributing to the economic development of the country, the Lagos State High Court should continue to promote public accountability, by prioritising matters relating to money laundering and looting of the treasury by members of the ruling class. The courts should interpret the law, to ensure that the Nigerian people are empowered to control the economy in the national interest.

Finally, it is expected that a beautiful Communiqué will be issued at the end of this Summit. As that will not be enough, it is suggested that a working committee should be set up, to ensure the implementation of the recommendations adopted in this Summit. The Committee should be constituted by selected Judges and Lawyers, as well as officials of the Ministry of Justice.

Femi Falana, SAN