To be certain, the ills afflicting the Nigerian criminal justice system predate the government of President Muhammadu Buhari. However, the current administration has brought to the forefront the flaws and defects of the Nigerian criminal justice system.
For one, the scourge of pending trials has worsened, with the percentage of prison inmates awaiting trial rising to eighty per cent. Moreover, in the 2016 budget, the government underfunded the police and the sum allocated for the maintenance of police operational assets in the year only lasted for three months. In addition, the judiciary got the lowest budgetary allocation in five years, while prison breaks and escapes increased in number and regions. Successive reports catalogued instances of extra-judicial killing and human rights abuses committed by security services and the institutional integrity and independence of the judiciary was assailed like never before. Bureaucratic bottlenecks, inter-agency rivalry and policy inconsistencies lessened the effectiveness of government’s intervention and mob justice became a regular social feature, highlighting loss of confidence in the Nigerian criminal justice system.
The criminal justice system in a democratic government is pivotal to good governance because of the centrality of the criminal justice system to order, stability and conflict resolution. Globally, the criminal justice framework is built on five components and these are: the law enforcement component; the court system; the prosecution; the corrections system; and the community. Governance determines how the criminal justice system as an institution of social control in a country is defined and utilized. Furthermore, how well a country manages its criminal justice system affects its overall performance on governance indices. An effective criminal justice system is, therefore, one of the key pillars upon which the concept of the rule of law is built because it serves as a functional mechanism to redress grievances and bring violators of social norms to justice.
The Government of Change
In the two years of the Buhari administration, the government of “change” has struggled to articulate a coherent policy framework that lucidly defines the roles and relationships between and among the components of the Nigerian criminal justice system. These components—the law; the community; law enforcement agencies; the court system and corrections—have, as a result, tackled each other rather than crime, and scored policy own-goals rather than cooperate. Few examples highlight this quagmire more vividly than the ‘Magu Imbroglio’, in which a security report written by one of Nigeria’s security agencies was relied on by the legislature for non-confirmation of Nigeria’s anti-corruption Czar.
Criminal legislation is the most important component of the criminal justice system as it defines rights, duties, obligations and relationships with other components. With the exception of the Administration of Criminal Justice Act, the basic laws dealing with crime in Nigeria are old colonial bequeaths both in orientation, drafting and language. The Criminal Codes, which apply to southern states and the Penal Code, which operates in northern states, were originally enacted in 1902 and 1960 respectively, and are more reflective of British colonial interests than current Nigerian social needs.
It is the duty of a sovereign and democratic state to design a criminal justice system that reflects its social and cultural orientation. Criminal justice as an instrument of social control must be situated in the cultural milieu within which it operates. More so, an effective criminal justice policy regime requires every society to create its own institutions of social control that reflect popular societal mores and values. In Lagos, for instance, five decades after Independence, the government enacted a criminal code that makes it a crime for anyone to call himself/herself a witch, a carryover from the old colonial legislative piece. To what end do we keep these funny provisions?
President Buhari, along with other critical stakeholders at both national and sub-national levels, has the moral and legal imperative to initiate the process of creating a network of laws that reflects the dynamics of Nigerian realities. Piecemeal isolated reforms, like the Administration of Criminal Justice Act, have, at best, a ‘band-aid effect’ and will likely not improve outcomes if enacted. The existing laws regulating the police, corrections and courts must be enacted simultaneously and they must reflect the unique situations of the Nigerian people.
Accountability: Concept vs Reality
The court is, functionally, the second most important component in the triangulated network of governance that involves the law, courts and enforcement agencies. In Nigeria, the courts are the only institution constitutionally empowered to determine the terrain of criminal culpability, and their decisions as well as dispositions, bear important marks on other components of the criminal justice system. Repeatedly, and not without justification, President Buhari and his appointees have accused this institution of corruption and incompetence. The courts bear some responsibility for the crisis in the criminal justice system: recall the high number of prisoners languishing in jail is because every prisoner’s route to prison involves courts and judges that dole out nothing more than symbolic ‘hand wringing’.
Magistrate courts in Nigeria are the most important courts when talking about the criminal justice system. More than ninety per cent of criminal cases that go to trial commence in the magistrate courts, and eighty per cent or more of those cases are resolved at that level. However, the managers of the criminal justice system in Nigeria discountenance the court in the scheme of things and magistrates have had to go on strike to press for improved condition of service, while superior courts receive the largest chunk of funds from the government.
In spite of these developments, the President’s relationship with the judiciary is no different from that of his predecessor. In 2016, the Buhari administration underfunded the judiciary, reducing the judiciary’s financial proposal of N143 billion by more than 50% to N70 billion at the National Assembly. This drastic decrease in financial capability is, in part, to blame for the poor performance of the judiciary that year.
Delivering swift yet balanced justice as a social good is expensive and that is why democratic states globally allocate a critical fraction of their annual budgets to servicing and maintaining their court systems. While the level of funding that a country allocates to its court is a political decision and largely depends on the country’s unique circumstances, funding must not upset the principles of separation of powers and judicial independence. The quantum of funding available to the judiciary in a state is a marker of the state’s ideological orientation as well as its institutional priorities. The judiciary is the essential gatekeeper of the Nigerian criminal justice system and a starving gatekeeper will likely not be an effective one.
Also, President Buhari, in his pattern of appointments to the judiciary, has followed the same counter-productive processes and norms as President Goodluck that have exposed the judiciary to political manipulation and corruption. For instance, the President (after delays) still elevated the most senior Supreme Court judge to the position of the Chief Judge and the head of the judiciary. But judicial offices are not stools to be inherited by the most senior judge or a bargaining chip to consolidate political power or reward acolytes.
Under Buhari, the insufficient budgetary allocation of resources has affected not only the judiciary but also other service-rendering components on the criminal justice line, including police agencies, corrections and intelligence agencies. According to the previous Inspector General of Police, Solomon Arase, the sum allocated for fuelling and maintaining the approximately 317,515 vehicles and motorcycles in the fleet of the Nigerian Police Force in the 2016 budget only lasted for 3 months.
Invariably, policemen have to personally fuel operational vehicles, pay for uniforms and other operational exigencies, print bail bonds, individually handle work-related trauma and yet bear the burden of providing security-a public good. No wonder, ubiquitous checkpoints manned by armed policemen who extract bribes by ostensibly demanding vehicle registration documents are symbolic of Nigeria as windmills are emblematic of the Netherlands. President Buhari’s administration and the ruling APC, by deliberately under-funding the police (while expecting and demanding the agency to perform its duties) have indirectly imposed on the electorate a tax in the most ingenious way.
The concept of accountability is critical to democracy and the rule of law, and it is the expectation of citizens that all public institutions and agencies be capable of being held accountable. Under President Buhari, the lack of accountability has become one of the hallmarks of the criminal justice system in Nigeria. Security agencies, for instance, have been accused of violating fundamental human rights of the citizenry without amend. In 2016, Amnesty International accused a squad within the Nigerian police of “getting rich through their brutality,” reporting that “In Nigeria, it seems that torture is a ‘lucrative business’.”
A Crisis of Confidence
Unlike their executive and the legislative counterparts, judges are appointed through a system over which the public has no direct control. Even in cases of proven misconduct, judges can only be removed from office after a laborious procedure which cannot easily be invoked. Yet judges wield tremendous powers. The Nigerian judiciary, as an institution, is complicit in the current failure of the criminal justice system: on the road to custody, Nigeria’s approximately 45,263 inmates awaiting trial went through courts and no one got into custody without remand warrants issued by courts. Beyond the hackneyed ritual of Chief Judges occasionally visiting or presiding over a ceremonial release of inmates, the judiciary has been operationally indifferent to the crisis of inmates in Nigerian prisons.
The perceived increase in incidents of mob justice in the last two years is another major consequence of the failures within the Nigerian criminal justice system. There exists a crisis of confidence in the capacity of the security services and the courts to fairly and independently punish crime in accordance with the Criminal Code. Growth in the mob justice incidents should serve as a grave warning to public servants in Nigeria about the gradual unravelling of social order and the country’s descent into anomie.
The issues around the criminal justice system in Nigeria manifest themselves at every processing point of the criminal justice line. Therefore, nothing short of holistic and cross-cutting reform will repair the system. Everyone in government has a responsibility for salvaging the system as presently exists, but ultimately the buck stops at the President’s table. In the meantime, the jury is no longer out on him and the APC government, and the verdict on the ‘alliance of change’ is negative⎈