Raising the bar in prisons administration, security and welfare
The Constitution of the Federal Republic of Nigeria (1999) (as amended) vests in the Federal Government of Nigeria the control and administration of prisons. (Item No. 48 of the Exclusive Legislative List of the Second Schedule to the Constitution; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264, 385-386G-C). This power is generally exercisable by statutory instrument of the National Assembly.
However, the Prisons Act (CAP. P29) Laws of the Federation of Nigeria, 2004 (the “Prisons Act”) and the subsidiary legislations made thereto vests in the President of Nigeria wide powers over the control, administration, security and welfare of prisoners and staff of the Nigerian Prisons Service. Notably, section 15 (a) of the Prisons Act provides that the President may make regulations with respect to the organization and administration of prisons.
The Nigerian prisons legislation and practice are generally perceived to be “anti-prisoner”. They tend to completely take away all rights and self-respect of prisoners. This is unlike the general prison practice and legislation in other advanced nations. For instance, in the United Kingdom (UK), Rule 10 of the Prison Rules (1999) S1 1999/78 provides that every prisoner must be provided, as soon as possible after his reception into prison, and in any case within 24 hours, with information in writing about those provisions of the Prison Rules and other matters which are necessary for him to know, including his earnings, privileges and the proper method of making requests and complaints. This is not so provided under Nigerian prison legislation. Also, in the UK, cutting of the hair of male prisoners is done with the consent of the prisoner (Rule 28 (8) of the UK Prison Rules). Whereas, in Nigeria, under Regulation 7 of the Prisons Regulations made pursuant to the Prisons Act (the “Prisons Regulations”), it is compulsory to cut the hair of male prisoners.
The real issue here is not about enacting more laws but effective compliance and enforcement of existing laws with necessary amendments or modifications to some.If given the option, most prisoners in Nigeria, if not all, would opt to be imprisoned in the prisons of other nations with advanced prisons system. The bad state of our prisons system brings about and nurtures the desire of most prisoners to escape from prison. This piece posits that there is an urgent need to ensure effective compliance with and enforcement of our prisons legislations so that our society will be a sane society. Honestly, the myriads of problems facing the Nigerian prisons system cannot be fully captured in this piece.
Welfare: Most prisons in Nigeria today are as bad, neglected and ragged as most (public) mortuaries are in Nigeria. The prisons condition are so poor and unhealthy such that a short stay in prison can cause a prisoner chronic illness and mental breakdown. In Nigeria today, our cities, streets, towns, villages and roads are littered with beggars and persons of unsound mind. Most of these persons are ex-prisoners whose poor state of physical and mental health has been caused or worsened by their stay in prison custody. Most prisoners are discharged from prison unkempt, penniless, sick, insane and with injuries and no one to cater for them. When they come out in this state of “rejection” by the prisons system, they further suffer more “rejection” by the society. This should not be the case.
During his lifetime, the late legal luminary, Chief Gani Fawehinmi SAN while contributing his quota to the call for a healthy society once stated at a forum organized by the Nigerian Medical Association that “our society is fast becoming an insane society” as a result of the menace of our bad prison system. Quite clearly, the Prisons Regulations contains provisions that deal with prisoners’ welfare, but only effective compliance and enforcement of this legislation will fulfil the good intentions behind it.
The truth is that there are so many provisions of the Prisons Regulations on the health and welfare of prisoners that are hardly complied with. For example, Regulation 8 of the Prisons Regulations states that “all prisoners, prior to being removed or discharged, shall be examined by the medical officer, and no prisoner shall be discharged except at his own request, while laboring under any acute or dangerous disorder, nor until the medical officer shall certify that such discharge is safe”. The foregoing provision is well-conceived and dangerous as well, as it is capable of being misinterpreted. For clarity, Regulation 8 should be amended to provide first that all prisoners prior to being removed or discharged, shall be examined by a medical officer. Second, no prisoner shall be discharged while laboring under any acute or dangerous disorder until the medical officer shall certify that such discharge is safe. Third, a prisoner may be discharged at his own request while laboring under any acute or dangerous disorder if he shows verifiable evidence that he will receive medical care in a medical facility, and fourth, the medical treatment of a prisoner who is found to be laboring under any acute or dangerous disorder, shall be at government expense.The fourth (above) appears to be the practice in other nations with advanced prisons system. For instance, in the United Kingdom, all expenses incurred in the maintenance of prisons and of prisoners are defrayed out of money provided by parliament. (UK Prisons Act (1952) s. 6(2) and (3) amended by the Courts Act (1971) ss. 53(3) and 56(4), Sch. 7, Pt. II, Para 4, Sch II, Pt. IV).
Pertinently, the amount payable to prisoners for their work/prison labour in the course of their stay in prison should be reviewed upwards. For example, Regulation 4 of the Prisons (Appellants) Regulations made pursuant to the Prisons Act provides that if an appellant is ordered to be released by the Court of Appeal, the following payments shall be made to him for his work during the time he has been specially treated under these Regulations – (a) if employed on skilled hard labour – 9 Kobo, (b) if employed on unskilled hard labour – 3 Kobo, and (c) if employed on light labour – 2 Kobo.
These amounts are abysmally small and measly.
Further, the Nigerian prisons legislation and practice should provide more motivation to members of staff of the Nigerian Prisons Service (“NPS”). This may be achieved by increasing the number of medals awardable to members of staff of the NPS. Currently, there are three categories of medals awardable by the President to staff of the NPS. (Article 1 of the Honours(Prisons Services) Warrant made pursuant to the Prisons Act). The aim of the award of the medals is to increase dedication and loyalty and boost morale.
Decongestion:The judiciary plays a key role in the decongestion of prisons. There should be special legislations and rules for the expeditious trial and determination of cases and appeals involving persons in prison. Recently, there have been a number of revisions to Rules of Courts and issuance of new Practice Directions of some Superior Courts of Record, but sadly, these have not catered to the expeditious trial and hearing of appeals of persons in prison. Also, the reformation and amendment of archaic laws and criminal procedural laws is vital. For example, it is essential that provisions of criminal procedural laws that gives a Magistrate the power to remand persons in prison when the Magistrate finds that it has no jurisdiction to try the person for the offence for which the person is charged (holding charge), appears to be an absolute power and should be whittled down. Power tends to corrupt and absolute power corrupts absolutely (Lord Acton (1834-1902) in his letter to Bishop Mandell Creighton, 3 April 1887 –“Life and Letters of Mandell Creighton” (1904)). In this regard, it is suggested that legislation should makethe grant of bail by a Magistrate mandatory where the Magistrate finds that it has no jurisdiction to try a person for an offence for which the person is charged, except for a capital offence.
Another point here is for our criminal procedure and substantive laws to make provisions for non-custodial sentencing such asforfeiture, probation, binding-over orders, rehabilitation and correctional orders and payment of fines and other restorative justice measures, especially for non-violent offences. It is noteworthy that the Administration of Criminal Justice (Repeal and Re-enactment) Law No.10 of Lagos State, 2011, allows a court of law to make an order committing an offender to render community service, inter alia, rather than imprisonment. In this regard, it is advocated that (ad-hoc) courts should be established and should sit in close proximity to prisons and should havejurisdiction to try persons who are in prison and whose (alleged) offences are punishable by non-custodial sentence and imposition of fines. This would work well for prisons’ decongestion.
Also, sections 175 and 212 of the Constitution gives power to the President and the Governor of a State, respectively, to grant pardon to any person concerned with or convicted of any offence, either free or subject to lawful conditions. In the case of the President, the power is exercisable in respect of offences created by an Act of the National Assembly and regarding the Governor of a State, the power is exercisable in respect of offences created by the law of the State. It is respectfully suggested that the President and the State Governors should exercise their discretionary power of pardon more frequently. The importance of regular exercise of the President’s and Governors’ discretionary power of pardon is especially underscored by the fact that non-convicts are often held in prison awaiting trial for so long that upon their conviction and subsequent sentencing, the convict has spent more time incarcerated than the crime warrants. To this end, the discretionary power of pardon should be exercised in favour of persons who have been imprisoned for even more that the term to which they would have been sentenced had they been sentenced at the right time. Alegal frame work for compensation (such as againful employment/welfare) for such persons would be a welcome development.
Security and Prison Breaks:In order to achieve an efficient prisons security system and to curb prison breakouts/escapes, our prisons security system should be tailored along prisons systems of advanced nations. In the UK, as a matter of security categorization practice and not by statutory requirement, adult male prisoners are placed into one of four security categories. These categories are: (a) category A (those whose escape would be highly dangerous to the public or the police or to the security of the state, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible); (b) category B (those for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult); (c) category C (those who cannot be trusted in open conditions but who do not have the ability or resources to make a determined escape attempt and for whom basic security precautions are sufficient); and (d) category D (those who can reasonably be trusted to serve their sentence in open conditions). The four security categories are based on the recommendations contained in Lord Mountbatten of Burma’s Report of the Inquiry into Prison Escapes and Security (Cmnd 3175) (1967) which followed the escape of George Blake from Wormwood Scrubs prison in 1966. (R. v. Secretary of State for the Home Department, ex p Duggan (1994) 3 All ER 277).
Education and Instruction: Every prisoner able to profit from the education facilities provided in a prison must be encouraged to do so. Educational classes must be arranged at every prison and prisoners may be temporarily released to enable them to receive instruction or training which cannot reasonably be provided in the prison. Every prison must have a library. However, these items are not provided for under the Prisons Act. It is worth mentioning that the UK Prison Rules (1999), S1 1999/728 provides that the purpose of the training of convicted persons is to encourage and assist them to lead a good and useful life. The Prisons Act and all subsidiary legislations made pursuant to the Prisons Act should be holistically reviewed and amended to meet modern realities taking into account what obtains in prisons systems in advanced nations.
Prisoners’ Rights and Privileges: The Nigerian Prisons Act is designed to deal with the administration of prisons and the management and control of prisoners, but nothing in the Act suggests that in the event of a breach of its provisions, parliament intended to confer on prisoners a cause of action resulting in damages. A sentence of imprisonment does not automatically extinguish a prisoner’s legal rights. The ordinary civil and criminal law operates in prisons and governs prisoners and prison staff, subject only to the special legislative provisions governing penal establishments and their inmates. Thus, inspite of his imprisonment, a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication. (R v. Secretary of State for the Home Department, ex p. Simms (1999) 3 All ER 400, 404; Raymond v. Honey (1982) 1 All ER 756, 759 HL).
Merely because a breach of the Prisons Act is not actionable per se does not mean that such a breach is not justiciable in public law terms. All decisions affecting the rights, legitimate expectations and status of prisoners taken in pursuance of the Prisons Act are susceptible to judicial review on ordinary principles. Thus, the prison authorities must act in accordance with the ordinary law and do not have unlimited powers over prisoners merely by virtue of their imprisonment. This has been recognised from the earliest times. (R v. Huggins (1730) 2 Stra 883; R v. Carlile (1822) 1 Dow &Ry KB 535, 537).
Discipline: The Nigerian prisons system is generally devoid of transparency. There should be transparency and improvement in the discipline, complaint procedure and response in the prisons system both for prisoners and members of the Nigerian Prisons Service. Prison officers must seek to influence prisoners through their own example and leadership. (UK Prison Rules 1999, Rule 6(2)). Duly authorised officers from outside the Nigerian Prisons Service should inspect prisons on a regular basis, especially on prisoner’s complaints procedure.
Benefits and Conclusion: An effective and efficient prisons reform will be beneficial to the economy. It will help to stem the tide of electoral violence, armed robbery, militancy, terrorism, human trafficking, advanced fee fraud and other crimes and vices in the society. This is trite, because good prisons reform will result in the reduction of the number of people who leave prison impoverished, unskilled, and mentally unbalanced and will also eliminate prison breakouts/escapes. Indeed, without the needed reforms, crime prone persons will continue to populate the number of “hardened” criminals in the society.
The task of correctly reforming the prisons system is enormous. The reforms can be best achieved by the employment of fresh legal minds and other professionals. Ideally, legal practitioners who have the zest for the job should be engaged from time to time in this regard. At the law firm of G. Elias & Co., the legal team led by Professor G. Elias SAN, F. Onuobia Esq. and S. OmoregieEsq. have consistently been involved in serious work for the proper direction and advancement of the cause of our country and would consider keenly and favorably serious reform work in this regard. There are many other professionals who are also contributing their quota.
When officially sworn-in as President of the Federal Republic of Nigeria, General Buhari should leave no stone unturned in ensuring a holistic reform of the Nigerian prisons system. This should not be considered a luxury in order to save the society from prisoners and discharged prisoners becoming dogs of vandalism and death.
Edoh is an attorney-at-law.