Charge, Bail Or Release – Three Solutions To Immediately Reform And Reduce Overcrowded Prisons And Remand Centres.

By Raphael Christopher

Overcrowding in our prisons and remand centres is an endemic and very serious humanitarian concerning issue and danger to health because it brings inhumane conditions of detention, appalling hygiene, sickness outbreaks, lack of adequate medical care, little or no food, insufficient space for detainees to stand, sleep or move. It also demoralises the detainees and demotivates those courageous front line staff helping to process them.

Yet, there are solutions to this terrible situation which although are simple but are difficult to implement because it needs the joint working together of all The Federal Government, The National Assembly, The Judiciary, The Police, state governments and lawyers unified in the goal of reduction of overcrowding in our prisons. However, we must try.

The solutions are three pronged and are not new. They are:

1. Charge the accused person or persons if there are sufficient grounds to and to secure a conviction.
2. Give the accused bail subject to response conditions and reasonable amounts.
3. Release the accused If there are no real evidence available and if they have already spent equivalent amounts of time in custody for the offences and do all of the above within the timelines prescribed under the Constitution of The Federal Republic of Nigeria.

By Charge I mean the laying of information or charge before a magistrate within 48hours. By bail I mean police bail set at reasonable amounts and Magistrates bail set at reasonable amounts. By release, I mean either release by The Police pending further enquiries; release by Magistrates because statutory timelimits have expired as per stipulated by our constitution and no solid evidence have been presented or found.

You see, three priceless things exists in life. Life is priceless. Liberty is priceless. Family is priceless and by extension, time lost being with family is priceless as they can never ever be regained and multiplied tens of thousands of Nigerians causing overcrowding in remand centres and prisons and their multiplied thousands of families daily are losing these three priceless things when the solution of charge, bail or release is easily available and can be used to prevent overcrowding.

We must bear in mind that even though Liberty has always been priceless but through the ages personal Liberty has to be balanced with the equally competing need for robust prosecution of crimes, enforcement of social order and security in our society by the relevant criminal laws enacted to this end. But Lt. Colonel later Supreme Court Judge Frank Murphy, a former Justice of The United States Supreme Court 1940-1949 said that “…Liberty is too priceless to be forfeited through the zeal of an administrative agent…”

He is in good company. Our constitution agrees. Chapter II of The Nigerian Constitution 1999 headed Fundamental Objectives and Directive Principles of State Policy, expressly declares that it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution and by Section 14 (1) (b) the security and welfare of the people shall be the primary purpose of government and further at Section 14(2) (a)(b) (c) that every citizen shall have equality of rights, obligations and opportunities before the law, the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced with governmental actions required to be humane and directed to fulfilment of our constitutionally enshrined rights.

The welfare and sanctity of the human person and human dignity are worthy goals enshrined in Liberty and are deserving protection by the Government.

How would this work in practice? First. we understand from the provisions of Chapter 4 of our constitution by Section 35. (1) that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law. This procedure is premised on the fundamental principle of presumption of innocence in criminal law that an accused is innocent until proven guilty. This is a legal right enshrined under the provisions of the Universal Declaration of Human Rights to which Nigeria is a signatory.

However, some of our Law Enforcement policy and culture is in practice is seen by many observers as being conducted on the standard of guilty proof of “ I believe you are guilty until you prove that you are innocent” basis and it is this faulty reasoning that needs to be addressed by my suggested solutions of charge, bail or release.

For example, let apply this solution of release here -as may be seen from the above proviso to Section 35 (1) of our constitution, a person shall not be remanded in prison awaiting trial for longer than the maximum period prescribed for the offence. This provisions are not being adhered to Nationally. Most commentators have stated that there are multiplied tens of thousands of Nigerians who are in remand centres and prisons all over the country awaiting trial for far longer than the maximum sentences prescribed for their offences. There may be genuine reasons for this state of Affairs however it remains unconstitutional. As this situation is not sanctioned by our constitution and for these group, one would ask the relevant NGO’s , Public Defender Offices and NBA local branches to immediately meet with the Police, Magistrates, the Judiciary and Prisons officials to identify and secure the release of these groups of prisoners which will reduce by about 30% of our overcrowded prisons and remand centres overnight with little financial costs.

We know that The Judiciary especially The Magistrates have by far the most important part in this matter of implementing these solutions by simply being very strict in enforcing the time limits imposed by Section 35( 2) of our constitution which states that any person arrested or detained shall be informed in writing within 24 hours in a language they understand of the facts and grounds for his arrest or detention.

I suggest that The Judiciary especially Magistrates should be vigilant to this rule and enforce it rigorously. If this is done, then about 10% reduction would be achieved in our overcrowded prisons and remand centres.

But by far the biggest impact is the application and enforcement of section 35(4) provisions which stated that if a accused is not brought before a court of law within 2 months or 8 weeks if detained or in custody or if not detained within three months or 12 weeks, they shall be released unconditionally or conditionally upon adequate conditions necessary to ensure that they appear for trial at a later date.

I suggest that the The Police, the Judiciary, NBA and other NGO’s and parastatals become very rigorous in enforcing this particular provisions, a conservative estimate of over 40% reduction would be achieved in our current overcrowded prisons and remand centres overnight at minimal financial costs to the Government.

In addition to my above proposed solutions and suggested action points, there are more that can be done such as there is need for more legal education in line of standard of proof required for each offence which should be a compulsory part of police college curriculum and further education compulsory requirements for inspectors and all police personnel.

Secondly, local NBA branches criminal bar sections should be actively involved in delivering pro Bono police station help to arrested persons so that the arrested individuals can be processed quicker and the matter disposed.

Thirdly, more Magistrates should be appointed to help deal with the avalanches of criminal matters flooding our courts and help clear the backlogs which is increasing due to the impact of insufficient funding of the Judiciary, and the Covid-19 pandemic.

Four, there should be built more courts and detention centres and prisons to enable a multi-pronged approach to solving this highlighted problem.

Finally, as the Liberty of multiple thousands of Nigerians are at stake and since Liberty is priceless, may I implore everyone in the Federal Government, State Governments, The Legislature and The Judiciary and The NBA to work together to consistently use my above offered simple solutions that would help ensure the proper processing of our citizens accused of crimes and if we get this right, then decongestion of our prisons and remand centres would be achieved and maintained.

Will you join us and do your bit?

Thank you for your time.

Raphael Christopher is a Lawyer and member of EnuguBar and can be reached at lawyers1990@hotmail.com