Legal aid act 2011, untapped goldmine in decongesting Nigerian prisons

Congestion and overcrowding is a major problem in the Nigerian Prison System. For quite a number of years now, the issue of decongestion of Nigerian prisons has been on the front-burner of national discourse. During this year’s budget presentation by the various Ministries and Parastatals of government before the National Assembly, the Comptroller General of Prisons dropped the bombshell; a paltry N 222 (Two hundred and twenty two naira) is what is earmarked for the daily feeding of each of the inmates of the various prisons scattered across Nigeria.

According to the Comptroller-General, the paltry amount budgeted for each inmate is due in part to dwindling government revenue, and partly due to the number of inmates in Nigerian Prisons. According to a prison audit report of the National Human Right Commission (NHCR) published in 2015, there are over 56,800 inmates in Nigerian prisons, with 70% of the figure (about 40,000) being awaiting trial inmates. Meanwhile the total combined inmate capacity of Nigerian Prisons is a little above 28,000.

The 70% figure of awaiting trial inmates in Nigerian prisons brings to the fore fundamental issues in criminal justice administration in Nigeria. The figure is too high and unacceptable in a country which prides itself as a Constitutional democracy anchored on the principle of respect for rule of law and liberty of citizens. Quite often, we hear stories of inmates spending longer period awaiting trial than the number of years they would have spent if convicted for the offence they were charged for. In some instances, some accused persons don’t have any case-file to their name. It is not uncommon to see during special national holiday, heads of courts and governments exercising their prerogative of mercy powers in favour of prisoners who have unnecessarily and unjustly languished in jail by setting them free.

One major factor responsible for the problem of overcrowding is the indigency of most accused persons. Many of the inmates cannot afford the service of lawyers, a factor which is responsible for their inability to secure their acquittal in court (in most cases the prosecution don’t have enough evidence to secure conviction), or to perfect their bail applications. As difficult and hopeless as the situation appears, what is most unfortunate is that there are laws in place which if effectively implemented can be used to correct this malady of long period of awaiting trials by inmates, especially as impecuniosities of inmates are concerned. One of such legislations is the Legal Aid Act CAP L9 Laws of Federation of Nigeria (Reenacted as the Legal Aid Act 2011).

The Legal Aid Act is an Act of the National Assembly enacted in order to give effect to section 46 of the 1999 Constitution, as well as to bring the practice of provision of legal aid services in Nigeria at par with International Standards. In a nutshell, the objective of the Act as contained in the explanatory memorandum is to make a law that will facilitate access to legal representatives for indigent accused persons.

The Act makes elaborate provisions for the offering of legal assistance to indigent Nigerians who have cases in court, either of a criminal or civil nature. These services are provided through the Legal Aid Council, which was set up as a government parastatal with the mandate of giving legal aid, advice and access to justice in accordance with the objectives of the Act. In addition, the Council is mandated to maintain a panel of Legal Practitioners who are willing to act for indigent citizens in need of legal services. By way of incentives, the Act creates the Legal Aid Fund from which payments are made for expenses incurred by Lawyers working for indigent Nigerians on behalf of the Council.

One salient provision of the Legal Aid Act which formed the basis for the writing of this article is section 16 of the Act. Section 16 provides that notwithstanding the provisions of any other enactment including the rules of court, legal practitioners for the time being serving in the National Youth Service Corps (NYSC) shall, if the Council so directs, act for a person receiving legal aid. The intention of section 16 is to take advantage of the free labour available from lawyers who are participating in the mandatory NYSC scheme, and deploying same to facilitate the fulfillment of the objectives of the Legal Aid Act. To take advantage of this section, all that the Council needs to do is to issue directives to NYSC top Management requesting for as many NYSC lawyers as are necessary for legal aid purposes.

The inherent benefit in section 16 lies in the cost saving effect of using NYSC lawyers. Unlike professional lawyers who are entitled to claim payments for services rendered to the Legal Aid Council, section 16 of the Act says that NYSC lawyers shall not be paid professional fees for services rendered, except stipend and transport allowance. This provision apart from its cost-saving effect is also in tune with the spirit of the NYSC scheme which is about moulding responsible citizens, and encouraging community service.

As stated earlier, lack of legal representation is a major reason why most accused persons standing trials spend long period of time in jail. From practical experience, all it often takes for an accused to be discharged in court is for someone (usually a lawyer) to make a formal application requesting the court to grant the accused freedom, for lack of evidence, or diligent prosecution by the police or public prosecutors. I have seen instances where persons are arraigned for an offence in the absence of evidence, and without the prosecutor coming back to court after the first day of arraignment to conduct the case.

What happens in such instance where the accused cannot afford a lawyer is that he will continue to be remanded in prison pending the time that the Judge or Magistrate come to the realization that the prosecution is not serious about conducting the case. And because of the long adjournments which characterize our court system, the minimum period it will take before the judge discharge such accused person might range from 2 to 6 years depending on the gravity of the offence. It is thus a very welcome development that the Legal Aid Act makes provision for the inclusion of lawyers participating in NYSC for the purpose of facilitating legal aid services for indigent prisoners.

However despite the provision of section 16 of the Act, most lawyers who take part in the NYSC scheme still end up working either in Ministry of Justice or Judiciary where they are mostly redundant for the whole NYSC year. Indeed it is my believe that posting of lawyers to Ministries of Justice, the Judiciary or to private law firms is a defeatist approach to the intendments of not only the NYSC scheme, but also the objectives of section 16 of the Legal Aid Act. What is most ironic is that those who end up at Ministries of Justice across the country end up prosecuting the same accused persons which the Legal Aid Act wants them to defend.

When I was in the University, I had looked forward to the NYSC year as the period when I would have the opportunity of representing indigent accused persons. Alas that was not to be as i was posted to the DPP’s office at the Ministry of Justice, Akwa Ibom State. Disappointed but not daunted, i made personal effort of contacting the Legal Aid office in Uyo to see how I could work with them. However my offer was refused simply on the ground that i have been posted to the Ministry of Justice, and as such there would be a conflict of interest situation if i am allowed to work for the Legal Aid while also serving with the DPP’s office (It is the DPP’s office that conduct public prosecution on behalf of the State). Disenchantment quickly followed for the entire year as there was not much to be done at the Ministry for the sole reason that the Ministry had more full-time lawyers than are actually needed, not to talk of the NYSC lawyers who are added to their workforce.

It is my believe that the objectives of securing legal representation for indigent accused persons through the legal aid Act would be better realized if the Legal Aid Council takes advantage of the window of opportunity offered by section 16 of the Legal Aid Act to absorb all or most of the lawyers who participate in the NYSC scheme. Indeed there is no need for the amendment of the NYSC Act before this can be done as the Legal Aid Act by virtue of section 16 gives the Legal Aid Council the power to absorb NYSC lawyers into the scheme. If this had been done most of the accused who languish in jail would have gotten their freedom thereby reducing significantly the number of thousands of persons on the awaiting trial list. Such absorption where it is done will serve to give meaning to the purpose of NYSC which is about community service, unlike the present practice where NYSC lawyers are posted to departments where they are not needed.

It is high time for the Legal Aid Council to put an effective structure in place to take full advantage of the provision of the Act in fulfilling its mandates. Not only will effective representation through legal aid for indigent accused persons help in decongesting prisons, such framework will further help to shore up the human rights protection records of Nigeria, in addition to saving the government the unnecessary expense of feeding and housing of the inmates with the attendant pressure on the expenditure of government. Ultimately, an amendment of the Legal Aid Act might be inevitable to make it mandatory for the Legal Aid to have a framework under which they will compulsorily take NYSC lawyers.
Olayinka is a legal practitioner based in Lagos