Speech  delivered by JB DAUDU SAN President, Nigerian Bar Association at the world press briefing of the Nigerian Bar Association

Abuja

            29^th September 2010

Courtesies,

Learned Colleagues, Ladies and Gentlemen of the Press

The Purpose of this press briefing is to state the views of the Nigerian Bar Association {NBA} on the state of the nation. The NBA has convened this press briefing specifically for the purpose of expressing our concerns on a number of key challenges facing our country.

The uncertainty about the political process, including the unacceptable manner in which the Presidency and National Assembly and their state counterparts government have gone about the process of constitutional amendments and effecting changes in the electoral law, the escalation of crime and criminality of our country including the sophisticated  dimensions of kidnapping and ransom-seeking  and failing state of our  criminal justice system have collectively placed our country in an uncertain state. No less noteworthy is the fact that, as we commemorate 50 years of independence it is trite knowledge that public trust in our democratic institutions is at its lowest. The National Assembly and State Houses of Assembly are largely seen as ineffective in representing the aims and aspirations of our  people for better life.

Learned Colleagues, distinguished ladies and gentlemen, this situation of social and political  uncertainty challenges the NBA in terms of its relationship with the government and people of Nigeria. The NBA cannot simply fold its arms and watch Nigeria drift aimlessly and in danger of being shipwrecked by the challenges of governance. In our view the legal profession must speak out against bad governance and do so loudly and when the occasion demands put the tools of our profession to good use in our demand for the improvement in the quality of lives of our people.

The 2011 Election and the Electoral process

The NBA has severally stated its commitment to actively engage the electoral process. To achieve this in concrete terms the NBA has put in place measures in which the members of the NBA will be engaged to be active participants in the discussion and dialogue on the review of legislation and modalities for the conduct of the 2010 elections. In furtherance of this the NBA will continue to engage CSOs and other stakeholders with the objective of achieving a consensus on how INEC can achieve a professional, fair, and transparent electoral process.

We have met with the leadership of INEC and we welcome the willingness of the INEC Chairman to discover and implement creative solutions to identified challenges. The NBA is also heartened by the energy of civil society to work toward positive electoral change.

I would crave your indulgence to say as stated above that that the NBA not only has an interest in the success of the forthcoming elections but we have a duty to collaborate with all agencies involved to ensure that we get this election right. The perennial i.e. recurring shame and national disgrace that we Nigerians are subjected to by our sheer unwillingness to get it right ought to be brought to an end at this elections. Personally, I have always held the view that change can only come when we alter our attitude, when our leaders stop rigging elections, when the people stop making unreasonable demands on candidates for elections (and this has found its way to bar elections) when we stop worshipping money and material things, when we recognise that as a people we must have a sense of dignity, pride and national substance, when the law enforcement agencies recognise that they wear their uniforms in the service of the People and in trust for the Nation. When officials of INEC recognise that there is greater profit in serving the nation than themselves, when defaulters, wrongdoers and others of like mind are punished for electoral offences.

Gentlemen of the Press, the NBA has previously drawn the public attention to some of the challenges posed by a number of sections of the Electoral Act. For example, Section 133-(1) of the Electoral Act 2010 provides that ‘No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an ‘election petition’) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, an in which the person elected or returned is joined as a party’. Ordinarily, the above provision would not have posed a problem but for section 133-(2) of the Act which defines ‘ tribunal or court’ to mean ‘in the case of Presidential or Governorship election, the Court of Appeal and in the case of any other elections under the Act the election Tribunal established under the Constitution or Act’. The implication of the foregoing is that it is the Court of Appeal that now has original jurisdiction in the determination of Governorship election disputes. If this is correct, it means that the unassented amended Constitution contains amendments to section 246-(1)-(b) (i), (ii) and (ii), section 285 (2) and the 6^th schedule to the 1999 Constitution to the effect that original jurisdiction in Governorship matters shall be henceforth be determined by the Court of Appeal. If this is correct then permit me to explore and expose the inherent risk and danger of such a state of affairs. First, by section 1 of the Court of Appeal Act (as amended) the total number of justices to the Court of Appeal are 70 and if that number 70 is divided by 5 which is the standard panel for election cases, then you have only 14 panels. Even if the constitution of the panels is reduced to 3 (which is most undesirable) one can only get 23.3 panels. Now, there are 36 States in the federation and usually in the heat of election petitions some States get more than 2 active and indeed overworked panels. The position as it appears is that there is not even one panel to go round the States. Ancillary to this is the fact by section 134-(2) every petition is required to be determined by the Tribunal within 180 days from the filing of the petition, whilst the appellate tribunal has 90 days to determine appeals to conclusion. As you may be aware, the latter courts can now by virtue of section 134-(4) may now adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.

Secondly, the justices of the Court of Appeal will be grossly overworked. They have their existing cases to contend with as well as the new constitutional functions thrust on them which include determination of appeals from legislative houses, federal and states.

The NBA Legislative Advocacy Group recommended the setting up of Constitutional Courts with both original and appellate levels but the National Assembly appeared to have ignored this proposal as with others that we submitted. We do hope that this inadvertence will not come to haunt us all.

Thirdly, the implication of the foregoing is that the Supreme Court now has final jurisdiction in Governorship matters. Those who support this situation have cited the increasing complaints of corruption in the Court of Appeal as the reason for the alleged abuse of its finality in such decisions while opponents cite the insufficiency of manpower in the Supreme Court to effectively deal with the situation.

Gentlemen of the press, we must express our reservations about the manner in which the ongoing process for extention of the election timetable is being processed by the National Assembly and the Presidency. Firstly, it should be noted that the constitutionality of the amended constitution is presently being challenged in Federal High Court. The latest submission of bills by the Presidency to the National Assembly for the further amendment of a number of constitutional provisions is being carried out in total disregard of the matter before the court. For an administration that seeks to achieve respect for the Courts this is a major shortcoming.

Further, we are concerned about the absence of any consultations on this process with civil society organizations. The National Assembly appears to have forgotten that achieving legitimacy and acceptability of the entire electoral process requires adequate and appropriate consultation with all levels of civil society. It is not sufficient to assume that the members of parliament speak for all Nigerians, this is especially so when as stated earlier there is a confidence crisis between the electorate and the elected.

The State of our Criminal Justice System

Nigerians want a justice system that works in the interest of justice. The NBA rightly expects a system of justice that gives every person fair and equal access to justice and guarantees the dignity, rights and security of every person and all communities regardless of money or any other difference.

Yesterdays kidnapping of innocent school children has once again brought to the fore the dire state of policing in Nigeria and the continuous failure of our criminal justice system. The NBA specifically finds the intervention of President Jonathan on this matter less than inspiring. To simply order the police to arrest the kidnappers is an indication of a tragic under-appreciation of the challenges of policing and the dire state of our criminal justice system.

The Nigerian Police

It is trite knowledge that public perception of corruption, incompetence, and failure to control crime and the law and order situation continues to plague the Nigerian police force. Above all, there is a policing culture of political patronage that perpetuates impunity and all too often an absence of accountability. The NBA recognizes  ongoing efforts aimed at better policing and internal reforms of the police force. The most noteworthy was the setting up of the MD Yusuf Committee on Police reform and the subsequent inauguration of an implementation committee to oversee key recommendations. We respectfully submit that it is precisely this ‘committee culture’ that has retarded progress with our police. Simply put there is nothing wrong with the Nigerian Police today that has not been subject of extensive discuss and recommendations by uncountable high level government committees. These reports identified key issues that require attention. These include:

• Absence of a National Crime Prevention strategy and limited  coordination among law enforcement agencies;
• Slow investigation and disposal of cases.
• Weak community policing initiatives.
• Investigation, law and order, and prosecution duties are combined in the same official, which tends to make officials unaccountable and inefficient.
• A colonial mindset continues to prevail, often resulting in maltreatment of women and children.
• Overcrowded Police Cells
• Poor training facilities

Each of these committees had repeated the same recommendations. That there is a consensus on the need to professionalize the police. Specifically the Nigeria police should be

• operationally neutral,
• organizationally autonomous
• functionally specialized,
• institutionally accountable, and
• Service-oriented.

The challenge before the President Jonathan is to transform the Nigeria Police into a true public servant. Specifically, achieving police reforms in Nigeria will require a wide range of reforms including replacing the outdated police act with new legislation that reflects Nigeria’s constitutional imperatives and entails a holistic review and redefinition of the role and function of the police.  It is not too late for Mr. President to lay the foundation of this intervention.

The Nigerian Prisons

The recent forcibale entry into the Bauchi prisons has also put the situation of the Nigerian prisons into spotlight. Several years of neglect by successive governments, poor working conditions, inadequate training and motivation coupled with chronic inmate congestion have placed the Nigeria’s prisons at the lowest ebb of the criminal justice system. The most pressing problem in the prison system is the level of overcrowding caused by majority of prisoners awaiting trial. More than 60 percent of the 48,000 prison inmates in Nigeria are awaiting trial. The reasons for the high number of awaiting trial prisoners are complex and relate to the inefficiency in the linkages of the roles and responsibilities of all the institutions that are tasked with administering criminal justice. 

These include:

• Inability to fulfill bail conditions;
• Bail not granted upon arraignment;
• Some of the offences were not bailable;
• Bail previously granted had to be revoked for one reason or the other;
• The court of arraignment lacked jurisdiction to try the offence charged (holding charge);
• Witnesses were not available;
• Delay in obtaining legal advice from the office of the DPP;
• IPOs have been constantly transferred to distant locations;
• Delay in completing Investigation of the alleged offence;
• Inordinate adjournments in courts; and
• Transfer of trial judges or magistrates

The response of the Jonathan administration to this problem has been multi-fold. It has continued with the prison decongestion programme embarked on by the Obasanjo administration. Other Presidential interventions include increasing the feeding allowance of inmates, increasing bed space within prison facilities and upgrading existing prison facilities and proposing a review of cases of inmates on death row.

If the truth must be told these interventions are yet to radically change the sordid face of Nigeria’s prisons. For one, the situation of awaiting trial inmates is still a source of concern. There is still an unacceptable number of awaiting trial inmates who have spent upwards of ten years in prison for mundane reasons including missing case files, absence of prosecution witness or investigating officer. It would seem trite that a person who can not be tried in ten years is not likely to be tried or to receive fair trial. The sheer population of this category of inmates has made the possibility of any structured rehabilitation programme within the prisons an almost impossible task. In general the huge awaiting trial population continues to have an adverse effect on the quality of life of the prisoners and the working conditions of prison staff.

Gentlemen of the Press, it therefore goes without saying that as long as the present situation of squalor and congestion exists in our prisons, attempted jail break outs and break ins  and prison unrest will continue to be a necessary part of prison life.  This is why the NBA finds the recent conclusion of the National Council of States on the issue of congestion curious if not ridiculous. First to say that the problems facing the Nigerian Prisons today is as a result of the population of inmates on death row is simply untrue and unfounded. The total numbers of inmates on death row in Nigeria’s prisons are less than 1000. Therefore even if the governors agree to execute all the 1000 inmates we find it difficult to see what impact this will have on prison congestion. 

The Judiciary

With respect to the Courts, election petition decisions from the appeal court have in recent times placed the judiciary at the forefront of national discuss. The Jonathan administration can rightly take some credit  for providing the enabling environment within which the independence of the judiciary is affirmed. The importance of this should not be underestimated. Having a system of independent courts is one of the cornerstones of any democracy. However, the Supreme Court and the Court of appeal do not represent the factual situation of the Nigerian judiciary.  

In general the judicial system in Nigeria today is largely characterised by incessant delays and a backlog of cases in almost all courts. This problem is compounded by insufficient remuneration to judicial officers and court personnel as well as limited facilities. The reality of majority of state high courts is that state governments habitually refuse to release funds required to finance capital expenditure. These factors combined with a cumbersome, opaque and outdated system of written trial procedures have created a general atmosphere of limited confidence in the judicial process.

The NBA is concerned about the inadequate funding of most State High Courts. We have called for an amendment of section 81(2), Section 84 (4) (7) the 1999 Constitution. This is to the effect that the recurrent and capital expenditure of both the Federal and State Judiciaries in addition to salary and allowances of all Judges of the lower courts and personnel staff thereof be charged to the Federation account.

There is also an urgent need to pay particular attention to the situation of lower courts. This cadre of judicial officers suffers some of the worst conditions of public service. We strongly support the proposal that the Magistracy be upgraded so as to remove that cadre of the judicial system from the Civil Service structure and recognize them as judicial officers.

The National Assembly

Establishing an appropriate legal framework is important in achieving sustainable reforms in the justice sector.  It is regrettable that in the twilight of this administration not one core criminal justice related bill has been passed  in the National Assembly and signed into law by the President.  A cursory look at the more than twelve administration of justice bills presently in the National Assembly will indicate the unsatisfactory nature of this state of affairs. These bills include the Prisons Act Amendment Bill, the Police Act Amendment Bill, the Evidence Act Amendment Bill, the National Human Rights Commission Bill, The Legal Aid Council Bill. We firmly believe that these bills if passed will go a long way in promoting rights and access to justice for millions of Nigerians otherwise deprived on a daily basis.

Gentlemen of the press, the NBA is uses this forum to call on the National Assembly and the Presidency to do more to promote and protect the rights of Nigerians. In our view this administration has failed to prioritise access to justice for Nigerians. In support of this assertion we wish to refer to the situation of the Legal Aid Council of Nigeria and the National Human Rights Commission. These institutions put together form the backbone of governments state funded justice scheme. Both institutions were set up to support the promotion of access to justice either by providing Nigerians with legal advise or representation in court. A combination of under-funding and lack of political will have conspired to rob both institutions of their  ability to provide effective and widely accessible rights and legal aid services for needy Nigerians. Indeed to further complicate the situation of the National Human Rights Commission, the failure of the President to sign the bill amending its enabling law has continued to do much damage to its credibility and ability to meet the yearning  Nigerians..

Need for Leadership in the Justice Sector

In summary, it is our considered opinion that administration of justice in Nigeria lacks vision and leadership. It is indeed strange that there is not one document in which the policy trust on justice sector reform of the Jonathan Administration is to be found either at the relevant ministerial level or within the Presidency. Parallel line- Ministries in the sector, federal and state government interests and the often conflicting and ad-hoc intervention of federal and state agencies have had dire consequences on the justice sector.  

The NBA once again calls on President Goodluck to take up the challenge of providing leadership to the justice sector. Crime and criminality, failing justice institutions, poor policing are all indicators of a failing justice system. President Jonathan can prepare the ground work for future interventions in the sector by immediately convening and chairing a dialogue of the state of our justice system aimed at identifying immediate and long term measures including who does what and within what time frame.

In Conclusion, NBA would like to use this opportunity to congratulate all Nigerians on our 50^th anniversary. We look forward to the future with hope that 2011 election will indeed usher in a government of the people backed by a credible election and to a nation where government will recognize that its number one responsibility to guarantee the rights, safety and security of al Nigerians.

I thank you for Listening

JB Daudu SAN
President, Nigerian Bar Association
29^th September 2010