For a long time, Nigerian prisons were centres of human rights abuses. People are detained unlawfully for as long as the police wanted. But all that is beginning to change for the better. Michael Kaase Aondoakaa, SAN, attorney general of the federation, AGF, and minister of justice, talks on what has now become of the pet project of his leadership in the ministry with Bala Dan Abu, executive editor, Tobs Agbaegbu, senior associate editor, and Anza Phillips, associate editor. Excerpts:

Newswatch:  We have heard so much about the prisons decongestion programme of this administration which you are personally spearheading.  What are the general principles behind it?

Aondoakaa: Prisons and the conditions therein have become human right issues and also constitutional issues.  No human being should be subjected to degrading and inhuman conditions. There is a contrast between conviction and degrading and inhuman treatment.  If a person is convicted, it does not mean he should be deprived of his fundamental human rights enshrined in the constitution of the right to a decent treatment. This has become a matter of international concern, that is the condition of prisons, how they should be, not just in Nigeria but all over the world.

The prison decongestion programme is one of the most useful things we are doing as a direct intervention. But the purpose for which it is established can only be achieved if the states also buy into it and initiate similar programmes of prison decongestion. If also the states can come in and create enough enlightenment or create appropriate sentencing guidelines, it will help. If you go to the exclusive list, what constitute federal offences are very few.  But if you go to the residual matters, you will discover that the state has a lot of responsibility to create penal laws.  They do create. These laws where they are broken, the state law courts try the offenders and when found guilty, the offenders are jailed in prisons.  Unfortunately, the states don’t contribute a kobo to these prisons because the prisons are on the exclusive list.  They convict these persons, and the federal government takes and feeds such convicts.  The federal government does not have control of how the sentences are given.  In some areas, a man is put in prison today, he is released  and re-arrested and taken back into prison on a small offence.  I cannot seat here and predict the volume of people that will be taken to the prisons because they come from the state courts, the magistrate courts, the high courts, the Sharia courts, the sanitary courts etc.  All these pour people into prisons.  Quite often, these people are not in prison because they have been convicted, but on remand.  Now, to achieve prison decongestion, there must be appropriate sentencing guidelines and appropriate remanding guidelines. For instance, how do you remand some one who is not a threat to the society?  If you grant him bail, he will still face his offence, but you prefer to remand him in prison custody.  So you have all forms of remands. And once it is remand, no Attorney General can take such a person out except through the legal court process.

Newswatch:  From the position of an AGF, you know conditions of the nation’s prisons.  Can you paint for us a picture of a typical Nigerian prison?

Aondoakaa:  The picture of a typical Nigerian prison is hard to paint.  The capacity of the Nigerian prisons is such that they can accommodate about 44,000 inmates.

Newswatch:  You mean all the prisons in the country put together can take only that much?

Aondoakaa:  Yes, all of them scattered around the country put together.  The main problem and complaint we have as at today about our prisons is that of overcrowding in some of the prisons due to high crime rates.  And because of the nature of the dispensation of justice coupled with some basic things which are fundamental for which the judges or the lawyers cannot be blamed, but they are fundamentals which we are trying to address as a government.  For instance, many of the offences are committed by young people or young adults between the ages of 18 and 25 years. They are involved in high level crimes that carry death sentence.   Capital offences are not bailable.  In fact the constitution itself says they are not bailable.  But then the constitution also stipulates that such offenders should be given the right to defend themselves by lawyers of their choice.  Therefore, the state has an obligation to ensure that he is represented by a lawyer to defend him to the Supreme Court.  The danger is that if one is charged for armed robbery, or an offence that carries death penalty, even if the person charged admits guilt, the judge by law is obliged to enter not guilty.  Evidence has to be taken.  And the accused person has to be given a lawyer to defend him if he cannot afford one for himself. So this is the dilemma that we have.   And for this, in some of the areas with high rate of crimes, we have overcrowding of prisons.  And you see, if one commits a crime, in Abuja for instance, and the Abuja prison happens to be overcrowded, you cannot take the person to Sokoto prison where the prison is not congested. The cost of bringing him from Sokoto to face trial in Abuja is such that the government cannot bear. The inconvenience of taking witnesses who are resident here from the scene where the crime was committed to Sokoto is another problem.  Thereby we get stuck.

Newswatch: What is the rough estimate of the prison population in the country?

Aondoakaa:  As of now it is about 20,000 to 25,000.  It went high but we have been able to reduce it.  So now, it is within that range.   But before now, it was really high.  This was a very worrisome trend because a lot of factors contribute to this.  The issue of inappropriate sentencing guidelines has to be addressed.  We must distinguish between non-violent and violent crimes. Where somebody has committed ordinary trespass on land, and the trespass is non-violent, it does not pose a threat to society, such a person, if convicted, the appropriate thing to do is to impose a fine.  Yes, there are some classes of offences that require deterrence, like if they are offences crippling the economy of the country.  Such persons in addition to fine should be sent to prison to create deterrence.  But where the offences are not really capable of ruining the economy, ordinarily, fines can take care of them for example, theft of a loaf of bread, goat etc. 

In the past, the Area court dealt with these type of cases in their own way, but we have since passed that stage.  Why do you send somebody to jail for sanitary offences?  You find people who committed such minor offences in our prisons today.  There was one in which the nation’s first lady had to intervene.   A young lady was to marry somebody.  Someone had paid her dowry when she was still an infant, with the intention that when the lady was fully grown she would marry him.  But when the girl came of age, she refused to marry the man. The lady was then thrown into prison.  We had to intervene.  We went to Bauchi, the place of the incidence, to secure the release of the lady from prison. You can now see what I am talking about. I don’t see how that bothers on criminality. The young lady was not privy to whatever arrangement they had made.  In law, she is guaranteed freedom of movement, association and choice.  So, on what ground would one now come and punish her by keeping her in detention?  So, these are some of the funny cases you find when you go to our prisons.  But we are making progress and the Comptroller General of Prisons and the Minister of Interior are collaborating with the office of the Attorney-General of the Federation, AGF, to make progress on this matter. 

Let me give you another classical example of what causes delay in the dispensation of justice in the country.  If you have 3,000 cases of armed robbery, if there is no eye witness, or even if there are eye witnesses attesting to the use of fire weapons, you will be depending on two reports-medical report and a Ballistician report that a gun was used.  For now, we have just one Ballistician in Nigeria and he is based in Lagos.  Even if the Ballistician is working dutifully, he is not expected to work on more than five cases a day. Assuming he is doing five cases a day, it will take him at least two years to do a thorough investigation of 3,000 cases and give his report.  That is to say, there will be a two-year delay to get the Ballistician report which is a vital ingredient necessary for the prosecution to do his case.  These are some of the basics.  In case of hard drugs, we have only one government chemist who is in Kaduna.  These are some of the things we are also trying to look into.  Half of the offences in the prisons are those that border on armed robbery. This is serious and we cannot just release armed robbers like that. You know some of the accused when they are arrested for armed robbery and are remanded in prison custody don’t tell any person. They don’t engage a lawyer, and prosecution cannot go on without them being represented by a lawyer, so we give them a lawyer. These are some of the difficulties we have. 

Another reason for prison congestion is recycling of prisoners. There has been tremendous improvement in the prison condition of late in terms of feeding.  You discover that if you get some people out of the prisons today, they get out, go and cause another problem and they are back. We have not yet been able to scientifically establish the solution to this. For instance, if we had DNA tests, we would have been taking their finger prints. Through biometric analysis, we would have been able to know exactly how often one has come to the prison.  Some come under different names. For instance, when he is arrested here, it is under a different name. When he goes elsewhere and he is arrested, it is yet on a different name.

Newswatch:  You mean now that the prison conditions are not good, there are some people who still want to go back to the prisons?

Aondoakaa: Well, prison conditions are not as bad.  The president has done a lot by releasing sufficient funds to the Nigeria Prisons authority towards the improvement of conditions in the prisons.  You have not heard of any jail break attributed to lack of proper feeding or lack of amenities.  Jail breaks these days are sequel to overcrowding.

Newswatch:  Is the government building new prisons as a measure towards decongesting the existing prisons?

Aondoakaa: The issue of building new prisons is a continuous process. As the country grows, there is no way the prisons will remain the same. But the first thing to do is to decongest the existing prisons. And in this regard, the directors of public prosecution in the various states of the federation must sit up to ensure that legal advice are prompt, to ensure that accused persons are not remanded in prison custody if there are no witnesses.  A situation where an accused is remanded in prison custody for a long time, sometimes up to three years, is not just it. It is no longer prosecution but persecution. For the prosecution to be giving one excuse after the other that it is looking for witnesses is not the law.  No! That’s not the law. The law is not for the prosecution to put one on trial and begin to look for evidence. And that’s why when I came in as AGF, I insisted that all case files must be completed before one is charged to court. It shouldn’t be the other way round. It is not right to charge somebody to court before you begin to look for evidence to convict the person at all cost.  By the time the prosecution has concluded its case file and one is charged to court, the prosecution should be able to, just the next day, get all the witnesses to testify. But here we get stuck.  People want to make news by going to charge somebody to court.  And when you say bring the evidence, they will start telling you that some of the vital evidence are in so, so and so places. That’s not prosecution. An ideal prosecution requires that by the time you get your witnesses, you get their depositions and you get everything ready. 

One other aspect we are going to address under the rule of law policy is to simplify our criminal procedures.  If you come across this hard core evidence, that is if a crime is committed and the evidence is readily available, the people should make statements on their own depositions. And those statements should be admitted in court.  For instance, if I saw a crime committed, I should be made to make a statement on oath that I saw the crime being committed and that I will give a vivid description of what I saw.  If I can no longer be found, the prosecution can at least use that evidence.  And if that evidence is not completely refuted, then some conditions can be sustained.  But here, you have to find the evidence. The people that first gave testimony to the crime are not on oath.  They just made statements. It becomes very difficult because they are not on oath.  No court of law will take them. So now you have to get those who made the details to come and testify and tender the documents. I think that’s a wrong approach.  I think we should now, as soon as we get a witness that is material to the commission of a crime, allow the person to depose to an affidavit. After all, in the federal high court, that deponent must attach his passport photograph and counter sign.  If that arrangement is done, you have this written deposition on oath. We have done it in election tribunals. Apart from the election tribunals, the reverse is the case. All the statements by both parties in a case are not on oath. Therefore, they have to come to the court and take an oath. We can designate a magistrate to be administering this oath; it is done in several other places whereby the magistrate takes this evidence.

Newswatch:  Is it true that UK is planning to build a prison in Abuja?

Aondoakaa: I am not aware that UK is trying to build a prison in Nigeria. What I am aware of and is consistent with international practices is that we have signed an agreement with Russia for the transfer of prisoners. We have done so with Thailand and have gotten some prisoners from there.  There is no problem about that. Now, when the British people came to us with the proposal of prison transfer, I took steps to protect the environmental conditions of the Nigerians convicted. We must admit that there in British prisons, they must be living on conditions that are slightly higher than what is obtained here in Nigeria.  I understand television and radio sets are given to inmates out there. If you take someone from that type of environment and bring to the Nigerian environment under a prison transfer arrangement without corresponding facilities, such a person may die due to the sudden change.  So we decided that there were two things that will make us make progress in such a transaction.  First, we said there is a law which says any prison transfer must be with the consent of the prisoner, and we said that law must be amended.  Almost all the Commonwealth nations have amended that law.  Secondly, conditions in selected prisons where these prisoners will be domiciled when they come must be improved dramatically. Now you know between Nigeria and Britain, though prison transfer is vice versa, they will transfer more prisoners to Nigeria than we will transfer to them.  For this, we said they must upgrade designated prisons where we will experiment this transaction. Upgrading is not limited to building of facilities. It includes capacity building, logistics support etc. That is what is happening.

Newswatch:  Do the police have a role to play in this programme of prisons decongestion?

Aondoakaa:  Yes.  The police have a lot to do here, and the present Inspector-General of Police has been of great assistance in that regard.  Besides, the prosecutor doesn’t have his own evidence.  Our job is to rely on the evidence.  And all the evidence are those collected or obtained by the police.  The prosecutor is not an investigator.  He relies on the case file brought to him by the police.  And if the case file is brought, it will help the prosecution.  Handing a case over to a prosecutor without bringing the physical evidence and the witnesses does not make any meaning to the prosecutor.

Newswatch:  Quite often, we have situations where the police attach conditions before granting bail to people brought to police stations.

Aondoakaa:  Bail is a right.  It is your own right.  Bail is just to give assurance to the court that if you are released, you will still attend your trial. 

Newswatch:  But in most cases bail is like a commodity that is put on sale by the police.

Aondoakaa:  That is unfortunate.  If you have such cases and you are able to establish your case, such people doing that will be prosecuted.  To keep somebody in detention beyond the limit is a clear case of corruption.  The police is not a judge and secondly, the constitution has not vested it with the burden of pronouncing guilt on the accused person because the constitution presumes an accused innocent until proven guilty.  These three requirements in law make it compelling for a resolute public servant to comply with the stipulation of the constitution.  If somebody violates the constitution by detaining you longer than necessary, go to court and sue such an officer and demand for damages.  But the mistake people make is that instead of suing the person who has detained another longer than is allowed, the government is sued.

Newswatch:  But it is assumed that whatever the officer does, he does so on behalf of the Inspector-General of Police who is also acting on behalf of the state.

Aondoakaa:  No.  That is a wrong assumption.  Where people are clearly going outside the law, outside the provisions of the constitution, you cannot attribute such action to the state or government.  If a police man is involved in an illegal act, he is held responsible for the illegal act.  The state cannot be held responsible.  The Police Act stipulates that.  Why bother the IG or the government?  You know who detained you.  Sue him and seek damages against him.  And if that is done, everybody will sit up.  People are always coming to sue the federal government to seek damages for unlawful detention as if the government was the one that detained them unlawfully.  The federal government has already made the policy that people should not be detained beyond the limit.  It is only the law courts that have the powers to remand people in prison custody without bail.  They have the licence to do so.  That is why it is very important to the police and any other investigating and prosecution agency that is charged with the powers of arrest to comply because this licence, immunity, is only extended to the judge who has powers to detain somebody without bail.  If you are dissatisfied, you go for an appeal.  It is wrong for any person or agency to be assuming to exercise powers belonging to the judge.  Anyone doing so is personally liable.  And may I cease this opportunity to educate Nigerians to leave out the president, the government and the AGF, and instead target those violating the constitution directly.

Newswatch:  There are some lawyers who quite often are in court not to win their cases but to deliberately delay cases.  Is there anything that can be done in this regard?

Aondoakaa:  Well, such people are acting against the ethics of the legal profession.  The legal profession is supposed to be a very honourable profession where it is expected that a lawyer should not touch a case where he knows that the case is very bad.  A lawyer is to assist the court to arrive at the facts correctly.  No lawyer either for the defence or the plaintiff is expected to mislead the court.  Again, we have a lot of authorities that say that technicalities are no longer the fashion.  It is incumbent on all lawyers to assist in the administration of justice. 

Newswatch:  After the prisons decongestion exercise, what kind of prison do you think the nation will have?

Aondoakaa:  A decent prison.  A prison that will guarantee the rights of inmates such that no one will say an inmate was subjected to inhuman or degrading treatment.  The prison that can afford the prisoner the basic minimum standard of living.  The prison that if one comes out of it, he is reformed.