Criminal Justice System in Nigeria: An Appraisal of Fair ......the State stands as the complainant...

International Journal of Social Sciences. Vol. 12, No. 1, January – March, 2018

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Criminal Justice System in Nigeria:

An Appraisal of Fair Hearing and Related Issues

by

Blessing Essien,

Department of

Sociology and Anthropology

University of Uyo, Nigeria [email protected]

Nsikan Senam

Department of

Communication Arts

University of Uyo, Nigeria

[email protected]

Emmanuel A. Umana,

Department of Sociology

Obong University

Akwa Ibom State

[email protected]

Abstract It is palpable that the Nigeria’s Criminal Justice System is facing issues and

problems. The Nigerian Government and concerned people have recognized them,

albeit nothing much are done to revamp the deplorable state of the justice institutions

in the country. This paper appraises Criminal Justice System in Nigeria vis-a-vis the

principle of fair hearing and other related issues. Information was gathered through

secondary sources such as textbooks, statutes, law books and law reports. Findings

revealed that poor infrastructure, corruption, inadequate manpower personnel,

inadequate working facilities and equipment, lack of motivation and incentives

constitute the major issues and problems bedeviling the criminal justice in Nigeria.

Based on the findings of the study, it was recommended among others: The review of

some extant laws, Rules of Courts, improvement of capacity building and training the

people who work in the various institutions for the dispensation of criminal justice.

There is the need to formulate a victim-compensation policy. In Nigeria in general,

the State stands as the complainant when a crime is committed, the victim’s rights

and satisfaction with the justice process feature very little in the scheme of things.

Key words: Crime, Justice, Fair Hearing, motivation, Reforms.

1. Introduction

Justice is the totality of the legal process of hearing and deciding or reaching a

valid judgment on a case based on the laws of the land. In other words, it is the end which

ought to be reached in a case by the regular administration of the principles of law

involved in the fact (Senam, 2017). Justice is concerned with the rules that should

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Essien B., Senam, N. and Umana, E. A.

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regulate or govern social practice. The Nigerian Criminal Justice System, especially since

the country‟s return to Democracy in 1999, has been under criticism especially by Human

Rights Advocates, scholars in the academia, highly spirited and concerned citizens as well

as some operators of the system (Ogundipe, 2006; Onimajesin, 2009; Osasona, 2015 and

Ali, 2006). The system has been criticised as having been compromised and performing

abysmally below standards when compared with what happens in other climes like the

Denmark, Norway and Finland. Of the many criticisms trailing the system in Nigeria, the

loudest and noticeable is that from Amnesty International. For instance, the organisation

laments the appalling state of the Nigerian justice and prison systems, noting that, “the

Nigerian Prisons are filled with people whose human rights are daily and systematically

violated” (Amnesty International, 2008: 3). The organisation also observed that, the

Criminal Justice System is utterly failing the Nigerian people, calling it “a conveyor belt

of injustice, from beginning to the end” (Amnesty International, 2008: 4). The Police

organisation and the judiciary on the other hand complain of being under staffed, ill-equip

and poorly funded (Ali, 2006).

It is equally no more news that Police and Prisons cells are congested and filled

with persons or suspects awaiting trials or those whose cases are still being investigated.

As noted by Omote (2009) allegations of corruption and abuse of office have been

levelled against judicial officers. Clients are also alleged to be ready to pay for services of

their counsel and pay magistrates and judges as well. It was in the light of the deplorable

state of affairs in almost all sectors of life in Nigeria and the near loss of hope by common

people in securing justice and seeking redress that prompted the Umaru Yar‟Adua‟s

administration in Nigeria in May 29th 2007 to come up with institutional reform

programmes in his “Seven (7) point Agenda and vision 2020” (Arinzona-Ogwu 2008, and

Yakubu, 2009). One of the cardinal points of the agenda was ensuring security of lives

and property particularly in the Niger Delta Region of the Country and the maintenance of

the rule of law. This was a commendable step towards launching the country towards the

path of growth and preventing the system from total collapse by providing holistic

intervention in key sectors of the economy especially in the area of national security.

Sadly enough, the attention of that and subsequent governments concentrated majorly in

ensuring peace in the country through instituted programmes of actions (award of

contracts to conflict prone areas, employment generation, and amnesty) whereas the

institutions and framework necessary for the enforcement of peace remained weak,

particularly the criminal justice system.

The problems of the Nigerian criminal justice system are many and varied,

cutting across all the component units of the system and ranging from poor investigation

and policing techniques, inadequately trained manpower, lack of infrastructure, delayed

trials, outmoded criminal legislations to poor co-ordination and planning within the

Justice sector. Above all, corruption appears generic and seems to put the system in the

bad light and at the same time crisscrossing all the facets of the system. Rotimi (1982),

Iwarimie-Jaja (1989) and Dambazau (2007), blame the woes of the system on lack of

concerted efforts and political will to vigorously overhaul the system by successive

governments. Osasona (2015) noted that the system has generally not undergone serious


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reforms in the past 50 years. Given the general dissatisfaction, and perhaps the

ineffectiveness and inefficiency associated with the criminal justice system in the country,

there is no gain saying the fact that the system needs overhaul in order to ensure its

optimum performance as critics are of the opinion that rebranding it is the way forward

(Agbakoba and Ibe 2004; Moore,1997;).

Against the fore-going background, this paper analyses:

(i) Issues and problems militating against the effective and efficient functioning of

the Criminal justice system in Nigeria.

(ii) Fair hearing and some related concepts.

(iii) The reforms needed to reposition the Criminal justice system in Nigeria.

2. Theoretical Framework

One Sociological theory that apt and central to this study and which explanatory

framework provides insight to the issues studied is Structural-functionalism of Talcott

Parsons. The underlying assumption of this theory is that “every institution is an active

system and that every action system has the following properties” (Ritzer, 2000:97):

(i) The property of order and interdependent of parts

(ii) Self-maintaining order or equilibrium

(iii) May be static or involved in an ordered process of change

(iv) One part has an impact on the form that the other parts can take

(v) Maintenance of boundaries with their environment (Ritzer, 2000: 97-99).

Criminal Justice Institutions of any state is a network of roles ranging from those

of the Police, Courts and Prisons. For the institution to perform optimally there must be

functional inter-change between the role players. The Police roles (Arrest == Detention,

Investigation == and Prosecution) affect the role of the judges (Arraignment = Trial and

Sentencing) in the courts. For instance, the quality of investigations and timely

appearances of the accused in courts significantly influence the quality and time of

judgment. The same could be said of the role of the court to the prisons (Custody =

Discipline = and Reforms). Timely dispensation of judgments significantly influences the

capacity of inmates in the Prison. This network of relationship affects the system as a

whole. The performance or lack of it has its impact on the institution as a whole.

It is however true that to maintain the system‟s equilibrium; change need be

imputed into it in order to ensure its survival. Change could be seen as being external (for

example funding from government and other agencies) or internal (Discipline and

Innovativeness etc). Change in this case is referred to as reforms. Reforms can take the

form of infrastructural provision, manpower development and capacity building, and

amendment of obsolete laws. It however should be comprehensive, cutting across all the

institutional networks (Police, Court and Prison) if the system is to function optimally. It

is believed that if the reforms are carried out, would ensure self-maintaining order of the

institutions.


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3. Concept of Justice

Justice literally means giving someone his or her due. Fair treatment, justice and

freedom are not just desired by mankind, but are fundamental to human existence the

world over. Issues on social interaction, equality, fairness and rights are therefore sine qua

none to human survival. To promote and maintain a successful scheme of justice requires

the promotion of sense of obligation as well as appetite for rights, especially when this

leads to liberties. Philosophers see justice as the happiness of everyone when everyone‟s

interests and life are guaranteed and protected in the society. Justice is the whole the legal

process of arriving at a valid and reasonable judgement on a case based on the law of the

land. It is the end product of regular administration of the principles of applicable laws.

Justice is primary regulator of social practices and interactions in the society. In relation

to the above definitions, the case of Guri v. Hadejia1 shows that justice is a by-product of

decision reached through appropriate administration of the principles of law. In that case,

the accused was charged with murder, a crime resulting from “Hiraba”, and offence

similar to highway robbery. He (the accused) had no access to witness or defence. This

was held to be repugnant to natural justice and equity. Similarly, in Tsamiya v. Bauchi

Native Authority2, the appellant was convicted of highway robbery and homicide under

Maliki law. He could not avail himself of a defence. Upholding the appeal, the Court of

Appeal held that he lower court‟s decision was contrary to the principle of natural justice

and equity.

Justice can be categorised into very many different types depending on

conception and circumstances; such categories include personal justice, legal justice and

social justice. Of all these categories of justice, legal justice is the only one that is directly

concerned with enactment and administration of law. Legal justice is a “special type of

justice which obliges the legislature and those with legislative powers to ensure justice

and the attainment of the common good in society through the enactment of laws which

are fair and honest, just and morally possible to observe” (Iwe, 1989).

From the above, the definition of legal justice in terms of the concept of

„fairness‟, „honesty‟, „justness‟ and „morally possible to be observed‟ is a way of

recognising the normative realm from which the law of the land or positive law must

derive its source and binding force. Furthermore, it is a way of acknowledging the fact

that the natural or moral law is the basis of our laws and the welfare of our citizens, their

ultimate purpose and their justification. It is legal justice that guides the judge and other

ministers in the temple of justice to play the role in ensuring that the principle of equality

before the law of the land is upheld and applied; to interpret and apply the law of the land;

to interpret and apply the law of the land with wisdom, discretion and fearlessness; to

ensure that justice is visibly executed at all times; to ensure that the rigours of justice are

tempered by mercy and clemency. Legal justice can only be visibly executed if law

makers and administrators acknowledge the equality of all the citizens before the law.

This calls for the upholding of the principles of the rule of law. Generally, two

components of justice have always been identified whenever any category of justice is

examined: (i) Formal justice and (ii) Material justice


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Formal justice, in legal justice for instance, is the set of rules often referred to as

the law, while material elements are the processes or application of these rules in a bid to

attain justice. Formal principle of justice is a theorised general rule or principle of law

which applies indiscriminately to everyone within the social structure (Uduigwomen,

2005). Sequel to this fact, those charged with the responsibility of administering justice

must be consistent and impartial in applying the rules. This calls for the concept of

judicial precedent. Administrators and custodians of justice must also make sure that

similar cases are dispensed similarly in line with the institutional norms of the society. In

Nigeria, the Criminal Code is an example of formal principle of justice while the Criminal

Justice Administration Act is an example of material principles of justice. This stipulates

the criteria for administering justice in the society. Justice in this sense is concerned with

ordering of the society and the provision of the basic needs of live to the citizens on the

one hand, and the expression of the rights of the individual, on the other. By reason of its

functionality, the material principle of justice helps to remedy the inadequacies of the

formal principle of justice. An examination of justice conceived in material terms, that is,

in terms of ordering of society and the prevision of the necessaries of life and the

expression of the rights of the individuals must involve an examination of state

involvement in the affairs of its citizens.

4. Criminal Justice System

Moore (1997:16) defines criminal justice as “the study of the processes,

institutions and personnel involved in the range of formal activities pertaining to

detection, apprehension, investigation, charging and prosecution, trial, conviction, and

sentences as well as post conviction/sentencing confinement (Imprisonment)”. Dambazua

(2007:174) describes it as “a legal process or procedure involving processing of persons

accused of committing crimes from arrest to the final disposal of the case”. Clare and

Kramer (1977) held the opinion that it was possible to view criminal justice, as a

sequence of decision making stages. Through the system, offenders are either passed on to

the next stage or diverted out of the system. The diversion may be due to many reasons

such as lack of evidence or a desire to reduce the load on the system. Each subsequent

stage of the process is interdependent upon the previous stage of its elements. It is the

interrelationship, interrelatedness and interdependence of the constituent units that mark

the criminal justice as a system.

According to Black‟s Law Dictionary (2009:403), criminal justice system is “the

collective institutions through which an accused offender passes until the accusations

have been disposed of or the assessed punishment concluded”. The system typically has

three components namely: law enforcement, the judiciary process and correctional

institution.

Therefore, criminal justice system composes of the Police, the Courts and the

Prisons. Each of the component unit is interwoven and depends on the inputs from others

for the survival of the entire system.


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5. Evolution of the Criminal Justice System in Nigeria

The history of Nigeria‟s criminal justice system dates back to the pre-colonial era.

By this time the various ethnic groups and tribe had various ways of administering

criminal justice in their domains based on their various cultures or traditions. Criminal

justice administration in the traditional Nigerian societies wore a formal and western look

in 1861 when the British Government on conquering Lagos in 1851 and subsequent

annexation it in 1861, set up Legislative Councils to make laws to control the masses and

regulate business activities involving many European Countries and Africans (Burns,

1929). The British Council and the Royal Niger Company Charter established Courts of

Justice and an Armed Constabulary in 1899 to enforce laws and regulations in the region.

This perhaps could be said to be the first attempt at integrative Justice System.

From 1861 to 1874, ten different courts were created with only four devoted to

criminal matters namely: The Supreme Court, Police Magistrate Court, the Court of Civil

and Criminal Justice, the West African Court of Appeal (WACA), and the Privy Council

(Elias, 1963). However, the laws enacted by the colonial Legislative Council were based

on the laws, values, and customs of the English people (Elias, 1967). When Lord Lugard

took over the direct administration of Nigeria from George Goldie and his Royal Niger

Company (RNC) in 1900, he retained all of its structures, that is: courts, laws and

regulations (Tamuno, 1970). In 1904, Lord Lugard introduced the Criminal Code to

Northern Protectorate (Arikpo, 1967). This code was modelled after the code that was

introduced into Queen‟s land, Australia in 1899 by the British government. After the

amalgamation of the Northern and Southern Protectorates in 1914, Lord Lugard made the

Criminal Code of 1904 to be applicable to all the Protectorates in Nigeria, but was

immediately considered inappropriate for the Northern Protectorate. Thus the Penal Code

was introduced to cater for Muslim interests, customs and values while the Criminal Code

still applicable in the Southern Protectorate (Okonkwo, 1964; Adewoye, 1977). At present

Nigeria uses tripartite system of the criminal law and justice. This include: the Criminal

Code based on common law and English legal system, the Penal Code based on Muslim

and Maliki system of law and justice, and customary law based on the customs and

traditions of Nigerian peoples.

Currently the Nigerian justice system generally functions through the judiciary,

characterised by a wide variety of courts at various levels. The courts are distinctly

defined hierarchically with their various constitutes and jurisdictions. The authorities of

the courts are of stages depending on the nature of the case and the parties involved. The

adversarial system of adjudication is adopted in Nigerian legal system cum criminal

justice system. In this method of adjudication, each party to a case has ample opportunity

over the way in which facts are collected and presented. Each party to a case has the

obligation to assemble and present its witness and evidence in a manner that is most

favourable to its case and averse to the opposing party. The adversarial system of

adjudication is also called the accusatorial method. Parties are adversaries and engaged in

continuous argument in which both parties try to establish its right or innocence as the

case may be. Freedom of expression and fair hearing are indispensable in the Nigerian

criminal justice system. These are basic guarantees for just treatment of parties to criminal


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matter. The availability of freedom of expression and fair hearing in a criminal trial would

naturally make an average reasonable person to feel safe in a trial and accept whatever the

final judgment may be in the case. The adversarial system of criminal justice which is in

practice in Nigeria is in contradistinction with the inquisitorial system which is in force in

some European countries like France. In the inquisitorial system, the truth is revealed by

an inquiry into conducted by the judge. In this system, it is the judge who takes the

initiative in conducting the case, rather than the prosecution and the defence (in the

adversarial system). In the inquisitorial system, the judge is the one who leads the

investigations, examine the evidence and interrogate the witnesses (Oxford Dictionary of

Law, 2006).

6. Overview of the Criminal Justice Institutions in Nigeria

The administration of criminal justice in Nigeria entails a synergy between

relevant institutions in the country all aimed at ensuring that the society experiences

peace, order and justice. The institutions include (but not limited to): The Nigeria Police,

the Court and the Nigeria Prisons.

6.1 The Nigeria Police and Criminal Justice in Nigeria

According to Tamuno (1970), The Nigeria Police is a product of Colonial

Administration. It was born out of a Thirty-member Consular Guard formed in 1861 in

Lagos Colony, which later transformed into an Armed Paramilitary called the Hausa

Constabulary formed in 1879. It was in 1896 that the Lagos Police was established, while

earlier in 1894, the Niger Coast Constabulary was formed in Calabar. North of the Niger,

the Royal Niger Company set up a Constabulary in 1888 in Lokoja (Aire, 1991). After the

formation of the Protectorates in the North and South in early 1900s, both the Royal Niger

Company Constabulary and the Niger Coast Constabulary produced Northern and

Southern Nigerian Police, respectively (Aire, 1991).

In 1907 Police reorganisation scheme enabled the colonial government to

consolidate its administration over the provinces by relying on the traditional rulers for

the maintenance of security. It was in 1930 that both the Northern and Southern Police

were merged to form the Nigerian Police Force with Lagos as the headquarters, while the

Nigerian Police Act was enacted in 1943 by the British Colonial Government. The

present Nigeria Police is a creation of Police Act CAP 259 Laws of the Federation 2004.

Its functions and powers are derived from this Act.

The 1999 Constitution make provisions on issues regarding the Police and its

duties. For instance, section 194 (1) of The provides that “There shall be a police force for

Nigeria and subject to the provisions of this section no other police force shall be

established for the federation or any part thereof. However, it is the Police Act of 1943

which actually outlines the roles of the Police. For example, the Act empowers police to

arrest without warrant, to detain and search suspected persons, and to serve summons etc

(Sections 24, 28 and 29).

But the issue is not whether the Nigeria Police is legitimate or is an institution

created without law. What bothers many is that despite its omnibus status within the legal


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framework and the huge financial commitments involved in maintaining over 370, 000

men and officers of the Nigeria Police, their services are still being rated poor (Ndagi-

mundagi, 2016). Such problems as poor investigation and policing techniques, planting of

criminal evidences, damage of exhibits, extortion of money, poor data storage and

retrieval system and corruption are said to characterize the Police institution (Ndagi-

mundagi, 2016).

The first step in criminal proceedings is victim(s) of crime to make official report

at the police station to officers whose duty is to investigate such complaints with a view to

deciding whether or not to invite or arrest the offender(s). This process leads to issue of

awaiting trial and holding charge. Most times the offenders are kept in hostile

environments, intimidated and tortured to make confessional statements. These acts often

carried out by police, violates S. 34 (1) of the 1999 Constitution of the Federal Republic

of Nigeria which stipulates that “every individual is entitle to human dignity and respect.

No person shall be subjected to torture or inhuman or humiliating treatment”. Section 25

(f) equally added that “a person who is charged with an offence and has been detained in

lawful custody awaiting trial shall not continue to be kept in such detention for a period

longer than the maximum period of imprisonment prescribed for the offence”.

Sub-Sections 35 (4) and 36 (5) further protect the liberty of the suspect by

declaring that “any person who is arrested or detained shall in accordance with S. 35 (1c)

be brought a court of law within a reasonable time and if not tried within a period of (a) 2

months from the dates of his arrest or detention in the case of a person who is in custody

or is entitle to bail, or (b) 3 months from the date of his arrest or detention in the cause of

a person who has been released on bail; he shall without prejudice to any further

proceedings that may be brought against him, be released either unconditionally or upon

such conditions as are reasonably necessary to ensure that he appears for trial at a later

date. These the Police mostly do not comply.

In addition, Section 36 (5) on the other hand avails suspects the presumption of

innocence until he is proved guilty by the court. Yet the Police sometimes prejudge and

condemn offenders through induced confessional statements. Worst still are cases where

criminal proceedings are stalled due to the transfer of the investigation Police Officer

(IPO) out of jurisdiction with case files or his inability to produce witnesses who would

have testified against the suspect.

Iwarimie-Jaja, (1989), Agbakoba and Ibe, (2004) asserted that poor condition of

service, inadequate staffing, inadequate working facilities and inadequate training of men

and officers of the force account for part of the reasons for Police ineffectiveness. Omote

(2015) however noted that more than 20,000 personnel have been recruited into the force,

upward review of their salaries have been carried out, some have even been promoted

rapidly and that the Federal and States governments have released funds for the purchase

of Fire arms and functional vehicles. The Police Equipment Fund (PEF) was also

launched in Nigeria to tackle the problem of facilities and successive government have

also intensified efforts on Police training by sponsoring their overseas training (Omonobi

and Ochayi, 2008). As could be observed in Nigeria, despite the fact that government is

trying in the direction of providing equipments and other inputs, efforts need to be


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intensified in the direction of human capital development particularly in the area of

intelligence gathering, investigation and prosecution (Ndagi-mundagi, 2016). Quite a

number of Police personnel are lacking knowledge of modern policing science which

encompasses surveillance, intelligence gathering and reconnaissance; let alone knowledge

of forensics which involves highly scientific analysis of crime scene and apparatuses

(Ndagi-mundagi, 2016). There is therefore the growing need for adequate manpower

training and collaboration between the Force and International Police Organisations on

areas of manpower training, equipment‟s and other exchanges.

6.2 The Court and Criminal Justice in Nigeria

The present court system in Nigeria is modelled after the British type following

the historical antecedent which culminated in the amalgamation of the Southern and

Northern Protectorates in 1914. There is a well established hierarchy of the courts within

the Nigerian legal system. In Nigeria the Supreme Court is the apex court. Immediately

below the Supreme Court is the Court of Appeal. Immediately below the court of Appeal

are eight courts with co-ordinate jurisdiction. They are: The National Industrial Court,

State High Court, Federal High Court, High Court of the Federal Capital Territory,

Customary Court of Appeal, Customary Court of appeal, of the FCT Sharia Court of

Appeal and Sharia Court of Appeal of the Federal Capital Territory. All these eight courts

as well as the court of Appeal and the Supreme Court are generally referred to as Courts

of record. Decided cases in the Courts of records are usually reported in law reports and

their decisions must be followed by the inferior courts in the hierarchy. Courts of record

are all creations of the constitution whereas all the courts other than the courts of record

are not creations of the constitution and are not courts of record.

Immediately below the courts of record are the magistrate court and the District

court which are courts of co-ordinate jurisdiction. They take precedent from the decided

cases of the courts of record. Below the magistrate court and the District court are the

customary court and the Area Court which are of co-ordinate jurisdiction. There is no

practice of judicial precedent in the customary court and the Area court and lawyers are

not allowed to advocate for litigants thereat. Note that Magistrate Court and customary

court are mainly applicable in the Southern States of Nigeria while District Court and

Area Court are mainly, applicable in the Northern States. The hierarchy of courts in

Nigeria can be represented graphically as follows:


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SUPREME COURT

COURT OF APPEAL

NATIONAL INDUSTRIAL

COURT

STATE HIGH

COURT

FEDERAL HIGH

COURT

HIGH COURT OF

THE F.C.T

CUSTOMARY COURT OF

APPEAL

CUSTOMARY COURT OF APPEAL OF

THE F.C.T

SHARIA COURT

OF

APPEAL

SHARIA COURT

OF APPEAL

OF THE F.C.T

MAGISTRATE

COURT

DISTRICT

COURT

CUSTOMARY COURT

AREA COURT

Today, there are two levels of courts in Nigeria that is, Federal and State courts.

The federal courts have the power to adjudicate on matter brought before it within the

state in which it is located. Courts provide the forum for resolving disputes through the

application of the laws although, not all disputes are brought before them. In resolving

disputes, courts should enjoy judicial independence, free from outside pressure. They

should also judge the cases dispassionately. In Akwa Ibom State there are Customary

Courts, Magistrate Courts and High Courts in almost all the Local Government Areas of

the State.

Magistrate Courts in Nigeria are the most important courts when talking about the

criminal justice system, as more than 90 percent of criminal cases that get tried commence

in the court, and 80 percent of cases terminate in magistrate courts (Pedro, 2012).

However, in spite of a good number of magistrates Courts in Nigeria, there are reported

cases of prison congestions (Uso-Essien, 2016). The above is not unconnected to the

misfeasance of the Police who hastily charge offenders to court on the ground that the

accused relatives fail to meet with bail conditions, the stringent court bail conditions, and

remand orders from court and some unnecessary adjournments.

Osasona (2015) equally observed that punishments and sentences imposed by

courts are not reflective of any institutional design aimed at achieving specific ends across

social classes. Osasona (2015) opined that though sanctions in the criminal and penal

codes infer deterrence, retribution and humiliation as the goal of these legislations,

judgements do not uniformly reflect this for the same classes of offences. He averred that

court judgements are discriminatory against the poor and the politically unconnected; for

instance, a magistrate court imposed a N2000 fine for Salisu Buhari a former Speaker of


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the House of Representatives for forgery and perjury, while another magistrate court

sentenced Godson Onyeorozie to 17 years‟ imprisonment without option of fine for the

same class of offence.

Similarly, Osasona (2015) observed that a Federal High court handed John Yakubu

Joseph, a former director in the Civil Service, a two year jail term, with a N25000 fine

option after the latter admitted to taking part in the stealing of N32.8 billion Police

Pension Fund, while yet another High court sitting at Oshogbo sentenced Kelvin Ighodalo

to 45-year imprisonment for stealing a mobile phone belonging to a state governor

without any option of fine (Olarinoye, 2013). Successive governments have over the years

committed huge resources into building new courts, rehabilitating existing ones as well as

providing functional vehicles to Judges, giving enhanced pay packages to them, yet there

are observable cases of corruption and illegality in the system (Uso-Essien, 2016). Given

these, there is palpable negative public perception on the integrity of courts in Nigeria. As

observed by Osasona (2015) beyond ethical issues, the judiciary system is bedevilled with

procedural deficiencies that make it difficult to dispose of cases expeditiously.

6.3 The Nigeria Prisons and Criminal Justice

The British Imperial government introduced the prison system in Lagos between

1861-1900 and by 1960 there was a prison in every provincial headquarters in Nigeria

(Iwarimie-Jaja, 1989). The largest prison complex in Nigeria, which has both medium and

maximum security branches, is the Kirikiri Prison, Lagos (Rotimi 1982). Nigeria has a

centralized system of prison administration, which means that every prison in Nigeria is

under the management and control of the Federal Prisons Services and fall under the

authority of the Federal Ministry of Internal Affairs now Federal Ministry of Interior and

at the top of the organizational hierarchy of the Nigeria prisons is the Comptroller General

of Prisons (NHRC, 2012). At present, Nigeria has 145 Prisons, 83 Satellite Prison Camps,

10 Prison Farms, 2 Borstal Institutions and 9 cottage industries for the training of inmates

(NHRC, 2012).

However, the Nigeria Prison is not without problems. According to Sosona

(2015), one of the outstanding features of the prison system in Nigeria is the high

percentage of awaiting trial inmates and a consistent decrease in the number of convicted

prisoners who are the fulcrum of prison of the Prison Policy in Nigeria. For instance,

Ogundipe (2006) observed Kirikiri medium prison with a built up capacity for 835

inmates, houses 2,554 inmates while more than 2,100 of them are awaiting trial. Also, the

Owerri Prisons originally built to accommodate 548 prisoners, now houses 1,827 inmates

and 1,663 of these are awaiting trial inmates. The Port Harcourt prisons has a built-up

capacity for 804 prisoners, but houses 2,798 inmates, out of which about 2,487 are

awaiting trial (Ogundipe, 2006).

The awaiting trial issue is not peculiar to the above mentioned prisons but paint

the ugly situation of the deplorable state of prisons in the country. Equally, the cost of

feeding awaiting trial inmates alone stands at N5.5billion naira per year, which translates

to about N7, 2000 per prisoner at an average cost of N200 per prisoner. Hence, the

monetary costs of feeding awaiting trial inmates who are presumptuously innocent in the


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eyes of law until convicted by the court are huge and prohibitive. Aside prison

congestion, poor prison facilities, inadequate funding, poor training of staff, outdated

infrastructure etcetera are said to be the most glaring problems facing the prison

institution (Ogundipe, 2006). This is an issue that calls for reforms. The reform does not

only need to centre on the physical rehabilitation of prison yards, but concerted social and

human rehabilitation programmes of inmates need be given due attention.

7. Fair Hearing and Criminal Justice: An Appraisal

The right to fair hearing is generally provided for in Section 36 of the

Constitution. It is an indispensable ingredient of criminal justice in Nigeria and in other

democratic jurisdictions in the world. Section 36(4) provides that “Whenever any person

is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to

fair hearing in public within reasonable time by a court or tribunal. The major exceptions

to these provisions are:

(a) The need for public safety and morality

(b) Cases involving young persons (below 18 years) or young persons are to give

evidence.

(c) Where a statute expressly provides for secret trial

(d) Where a minister or a commissioner stratifies the court that it is not to the public

interest for the trial to be in the open - see Section 36(4) (b) of the Constitution.

The right to fair hearing is otherwise referred to as the principle of natural justice

and the lack of it in any trial renders the trial null and void to the extent of its

inconsistency with the principle of fair hearing. The right to fair hearing or principle of

natural justice is encapsulated in the twin pillar Latin maxim: Audi alterem Patem and

Nemo judex in causa Sua. Audi alterem Patem means you must hear from both parties. It

implies that each party to a case or conflict shall be given an opportunity to be heard3.

Similarly, Mohammed, J. in Padawa and 8 Ors v. Jatau4

held as follows: “The principle

of audi alterem Patem both under the constitution and the common law, insists that each

party must not only be heard but must be afforded the opportunity to present/defend the

case either in person or through a counsel of his own choice.”

Under the principle of fair hearing, if one of the parties is refused a hearing or not

given an opportunity to be heard, the hearing cannot qualify as fair hearing. Without fair

hearing, the principles of natural justice are abandoned. The principle of fair hearing is

not a technical doctrine but a matter of substance. Thus the question is not whether

injustice, has been done because of lack of hearing, but whether a party entitled to be

heard before deciding had in fact been given an opportunity of fair hearing5. It is

noteworthy that the mere fact that a trial was conducted in a speedy way does not imply

the accused right to fair hearing had been denied. On the other hand, audi alterem patem

rule is designed to avail every party an opportunity of being heard. It does not mean that

the party must be heard inspite of his refusal to avail himself the opportunity for fair

hearing given to him as in the case of Nigerian Bar Association v. Akintokun6 where the

respondent had been given an ample opportunity but he refused to appear and testify only

to turn back to canvass a denial of fair hearing.


181

The other Latin maxim that goes with audi alterem patem is Nemo judex in causa

sua which means a person shall not be judge in his own cause. The principle of nemo

judex in causa sua demands that justice must not only be done but must be seen to be

done. The maxim demands that the arbiter should be neutral. Thus in determining whether

the principle of nemo judex in causa sua is complied with, the issue is not whether the

judge was biased but whether he was clearly observed or seen to be unbiased. Thus a

mere suspicion of presence of bias goes a long way to testing compliance to the principle

of nemo judex in causa sua. In Azokwu v. Nwokanma7 the Supreme Court defined bias as

follows:

Bias in relation to a court or tribunal is an inclination or

preparation or predisposition to decide a cause or matter in a

certain pre-arranged way without regard to any law or rules

and the likelihood of bias may be drawn or surmised from many

factor such as corruption, partisanship, personal hostility,

friendship, group membership or association and so on towards

or involving a particular party in a case. The fore-going indicates that one of the yardsticks of determining whether or not

there is compliance to the principle of nemo judex in causa sua is bias. Bias can manifest

by actus reus or by mens rea (i.e. by act or by mental element, intent). Again, the

principle of nemo judex in causa sua prescribes that the adjudicator must not be interested

in any of the parties or subject matter by virtue of his relationship with any of them or the

outcome of them or outcome of the proceedings (Agaba, 2011). In Garba & Ors v.

University of Maiduguri 8, the Deputy Vice Chancellor whose house was vandalised by

rioting students was the Chairman of the Panel that tried the students. The Supreme Court

held that a person who was affected in the subject matter of a case was not qualified to sit

as a member of the Panel that tried the matter.

The right to fair hearing is so fundamental in criminal justice administration, like

in all other suits, that it is not court-sensitive but generally imperative. No matter the

grade of court where proceedings are conducted, the rules of fair hearing must always be

observed. They must be observed even in quasi judicial tribunals or panels where a matter

involves the right and obligations of a person.

8. Conclusion and Recommendations

From the foregoing elucidations, it can be concluded that there is a strong need

for reforms in Nigeria‟s Criminal Justice System so as to engender effective Justice

delivering to all citizens. The justice system should not only be developed to protect the

privileged few, but it must also be developed to protect the poor cut up in the system

either as offenders or victims. Without which there is no justice. As noted by Oputa

(1985:141-142):

Any order allowing this appeal and also acquitting and

discharging the appellant will not be an order made in the

interest of justice. And justice is not a one -way traffic. It is not

justice for the appellant only. Justice is not even a two-way

traffic. It is really three-way traffic. Justice for the appellant


182

accused of a heinous crime of murder; justice for the victim- the

murdered man, the deceased, “whose blood is crying for

vengeance’’ and finally justice for the society at large- the

society whose social norms and values had been desecrated and

broken by the criminal act complained of. It is certainly in the

interest of justice that the truth of this case should be known

and that if the appellant is properly tried and found guilty, he

should be punished. That justice which seeks only to protect the

appellant will not be even handed justice. It will not even be

justice tampered with mercy. In the light of this, modernisation and reforms of all institutions of criminal

justice delivery in Nigeria in general will assist in development and delivery of justice

under the country‟s democratic governance.

Given the findings of this study, the following recommendations are necessary if

the Criminal Justice Institutions in the state are to be repositioned.

(i). Members of the Police Force need to be trained and retrained. The lack of

knowledge in the use of modern investigative techniques skills in detecting crime

has encouraged the Police mainly to use torture to extract confessions from

suspects.

(ii). The Police service should be well funded and to stamp out corruption and other in

adequacies which characterised many Law Enforcement Agencies in Nigeria.

(iii). There should be institutional capacity building. This will involve increase in the

number of Courts, appointments of more Magistrates and Judges, constant

retraining of Judges and Magistrates. Training of personnel within the Criminal

Justice sector for the implantation of the reform programmes becomes necessary

otherwise; absence of capacity building will affect reforms.

(iv). Constant law reforms are necessary to meet the challenges of the times. In the

Criminal Justice sector in Nigeria, some of the reforms that need to take place can

be undertaken without legislative change, while some can only be achieved

through legal reforms. Such legal reforms can be in terms of sentencing reform,

streamlining and adoption of plea bargaining, prosecutor reform, and unification

of criminal procedures in the entire country.

(v). Legislation is also recommended to streamline the guidelines on pre-trial

processes, bail and general management of cases from initial arraignment through

trial to sentencing.

(vi). The Prison infrastructure is outdated, overstretched and overcrowded.

Government should build new Prisons or expand the existing ones, fund it

adequately and modernise the Prison System to ensure that there is positive

impact in the behaviour of inmates.

(vii). There is the need to formulate a victim-compensation policy. In Nigeria in

general, the State stands as the complainant when a crime is committed, the

victim‟s rights and satisfaction with the justice process feature very little in the

scheme of things.


183

(x). Reform is required in the Legal Aid delivery. The civil society should be

encouraged to take active part in delivering free legal aid. The situation in Akwa

Ibom State where Legal Aid Council is a Federal Institution renders it difficult to

provide effective service at the Local Government Areas of the State. In the light

of this, government should establish Public Defender Agency. This will increase

access to justice and reduce delayed trials.

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5. Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (pt. 98) 419

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7. Otapo v. Sunnmonu (1987) 5 SCNJ 57

8. Padawa and 8 Ors v. Jatau (2003) FWLR (Pt. 164) 228

9. Tsamiya v. Bauchi Native Authority (1957) NRNLR 55

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