Raising the bar in prisons administration (2)
ANOTHER point here is for our criminal procedure and substantive laws to make provisions for non-custodial sentencing such as forfeiture, 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 have jurisdiction 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.
A legal framework for compensation (such as gainful 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 categorisation 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, in spite 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. Omoregie Esq. have consistently been involved in serious work for the proper direction and advancement of the cause of our country and would consider keenly and favourably 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 Esq. is an attorney-at-law. He has been mentored at A. A. Akpedeye (SAN) & Co., Kola Awodein (SAN) & Co., and G. Elias & Co.
Raising the bar in prisons administration (1)