Michael Lana, a former Attorney General of Oyo State, speaks to DARE ADEKANMBI on the implications of the COVID-19 lockdown on litigants, lawyers, judges and awaiting trial inmates.
What would you consider the current and future implications of COVID-19 on Nigeria’s judicial system?
There is no doubt that COVID-19 has disrupted a lot in the judicial sector. Before the Chief Justice of Nigeria, Justice Tanko Muhammad, relaxed the lockdown on the courts, so many people were already in detention and it became a problem in securing their bail or release. So many matters had been hanging too. Before now, there had been an issue of piling of cases which have not been heard. Every passing day these cases are not heard, pressure will increase on stakeholders in the judicial sector after COVID-19. Not only that, so many matters are rising now that people could have gone to court to file such cases. But we can’t file any new case as of now. You can’t be asked to be before a judge or do anything. For instance, if somebody trespasses on your land right now and you need to get an injunction against the person, there is no way you can go about that now. The trespasser, probably before the end of COVID-19, especially in Oyo State where there is no lockdown, will have started building on the land or even completed it before COVID-19 ends because nobody knows the end of the virus yet.
Don’t you think courts could still have been able to sit if the use of technology is factored into the judicial system?
A lot of things which ought to have been done are not being done because the government did not listen to my advice when I was Attorney General. I had proposed to the government at that time that we should go digital. I remember one Colonel Fakunle or so was pivotal to this proposal. This would have made us to be doing things electronically. Even from our chambers, we could have been filing cases in court or even get an order of injunction from our chambers without going to court. I was proposing then that the government should allow us implement that project, put the gadgets in place to allow for things to be done electronically.
Now, all the courts are staying static. I gave the proposal more than 10 years ago. But the government at that time was not ready to listen. Government will have no choice now but to go that way so that a lot of paperwork that we are doing in courts will be minimised. A lot of appearances in courts will also be minimised as well as a lot of writing being done by our judges. Right now, a lot of things are held in abeyance and a lot of injustice is going on because people can’t get redress in court.
Now, it has been relaxed. But it has been relaxed to time-bound cases and in the state, we don’t have time-bound matters because there are no election matters, to serious issues of bail, fundamental right and any matter that is urgent. You will find out that these categories are very few. As it is now, lawyers, judges and other stakeholders in the sector are redundant; whereas violation of rights continues. Some violations are going to be very disruptive; some are going to be probably irremediable COVID-19.
Could it have been the cost of the project that made government turn a deaf ear to your proposal?
We looked at the cost at the time and it was something that an ordinary local government council could afford. At that time, it was not that costly. But in most cases, governments don’t really take care of the judiciary. It is only when elections come that they know the importance of the judiciary. The most neglected arm of government is the judiciary and the effects of this they don’t know.
Most people don’t know that the judiciary has a serious role to play in the economic development of the country. You can’t get foreign direct investment when there is no stability in the judiciary. No foreigner will want to come to Nigeria when the judiciary is not free or have a semblance of freedom. When there is conflict or a dispute in the investment they are bringing in, they want it resolved in a civilised manner. So, it is very important that government must treat the judiciary with all the seriousness it deserves. Take for instance, in a Federal High Court where you have maritime matters. Imagine the owner s of a Ukrainian or British vessel having to allow his vessel stay on the high sea for more than the required time, fuelling the vessel with thousands of dollars because there are no courts to try or hear any matter regarding contract dispute. What is most important to an international investor is whether there is an unbiased judiciary where they can take their matter to in case there is a dispute.
Oyo State Commissioner of Police said on a radio interview recently that those arrested for violation of restriction of movements and curfew had to be released because the courts are not sitting, although he added that such offenders could be re-arrested and taken to court…
He can re-arrest such people because once they grant them bail, people would stand surety for them and the suspects will have addresses and so on. But look at what is happening to the magistrate’s courts when they take them there. The magistrates already have an avalanche of cases before them. That means cases will further pile up on their desks. Maybe a magistrate per year hears about 800 cases, how do you want such person to cope? Without the court going fully digital, cases will continue to pile up. Already, there are 10 to one year old cases in the magistrate’s, High Court, Appeal Court and Supreme Courts in the country. I have a case I am handling that began in 2004 and we have not even got to the hearing stage in 2020. I have another case that judgment was delivered this year, after 10 years of filing the case.
There is no period we should say we are suspending the operation of the courts. That is why even when judges go on vacation, some judges known as vacation judges are in the courts working to handle urgent matters. This is because throughout the period of the vacation, people are filing cases. Now, nobody can file cases because the registry of the court is lockdown. After COVID-19 holiday is over, there will be a serious rush to file cases and serious pressure will come on the stakeholders, beginning from the court registry and all others in the court system.
The United Nations has advised African countries to reduce prison populations to prevent COVID-19 spread given the unhygienic conditions of most prisons and President Muhammadu Buhari has written the CJN asking for speedy trial of cases, particularly as it relates to the over 52, 226 of the 74, 127 inmates across the country. Why do we have such a huge number of persons awaiting trial and what is your own solution?
It has always been like that. When, as Attorney-General, I visited Agodi Prisons, I found out that the awaiting trial persons were more than 60 per cent of the inmates population. The problem was caused by the military and the problem remains unaddressed by successive civilian administrations. When the police want to punish a person, they will take the person to a magistrate’s court, even knowing full well that the magistrate can’t hear the offence for which the person in being charged, say murder for instance. They will hide under the constitutional provision that an accused person should be taken to the nearest court within 48 hours. But what the police don’t understand and what the magistrates don’t want us to argue and which I have tried twice to argue is that taking the person to the court does not mean any court. It means the accused should be taken to the court that has the jurisdiction to try the offence.
To be fair to the police, most people will take accused to the magistrate’s court because they could not have concluded investigation within 48 hours. But the fact that you have arrested a person does not mean, in a civilised country, that the person must be in prison or custody till investigation is concluded.
I once watched a documentary where a boy committed an offence at age 17 and the investigation was not concluded until when he was 34 years old. It means the police spent 17 years before they were able to get conclusive evidence that the boy committed the crime. If this happens in Nigeria, the boy could be kept in custody all that time, but it should not be so, even if they feel a suspect might escape.
There must be a mechanism to look into situations like this. In fact, the police are not supposed to arrest anybody until they have concrete and conclusive proof that a person committed the offence but it is not the case in Nigeria where we have people going to report others to the police without evidence of the offence purportedly committed and the police will still go ahead and make arrest.
This position in the Magistrate’s Law should be revisited. It is unconstitutional. No magistrate’s court should have the power to give custodial order which mandates the police to put a person in prison until the Department of Public Prosecution (DPP) comes into the picture. The court gives some intervals such as forty days for the police prosecutor to come to court to update the court on the progress of the investigation. The suspect for no reason should be put in detention or prison for the police to do its investigations. It is injustice to the person detained while the police are still determining if there is a case for him to be taken to court.
The law is being turned upside down as the law is not being interpreted the way it was made by the law makers. The majority of those in detention or prison are there based on orders from magistrate courts.
Secondly, in the high courts, especially the federal high courts find it hard to grant bail to suspects especially if the case is related to the Economic and Financial Crimes Commission (EFCC). This results to a person who has not been put on trial spending three to five years in prison. This should not be so at all. At times, the person is eventually found not guilty. This is against the principle of criminal law which states that it is better for a thousand criminals to escape than for one innocent person to be punished. The criminal system does not set out to punish from the onset.
But this principle of criminal law is not followed by our courts, police, EFCC, ICPC and others. Their own is that once a person is arrested, the person must begin to receive punishment immediately.
The advent of COVID-19 should make all the chief justices, attorneys-general, houses of assembly to sit up and revisit the criminal laws including its administration, the powers of the police over arrest, the power of the magistrate›s court and others.
Today, everyone who has a person in detention will find it difficult to sleep because of the fear of their person being infected by coronavirus and possibly die there.
Those in detention should be granted bail by any judge depending on the court that has the case. If it is a federal high court matter, let a judge from the same court grant bail to the person. Some police stations, especially within the FCT would grant bail based on conditions that a person would ot be able to fulfill in order to keep the person in detention. This is wrong.
There should be a law which sets out the power of detention by all the security agencies in the country as well as administrative bail conditions. How can a businessman be asked to bring a federal officer on level 14 who has a house in Ibadan as condition for bail? How can a person be asked to bring a civil servant with property worth seventy million naira to get bail? If a civil servant has a house N70million, he would be a subject of investigation. Some of these are the impracticable situations that are responsible for people being kept in detention or prison indefinitely. Unfortunately, the number of detained persons is increasing on daily basis.
Out of the thousands of persons the president said were awaiting trial, a majority of them have been granted bail by the courts but they could not meet the conditions attached to the bail. when a lawyer goes back to tell the court that the person cannot meet the condition, the judge insists that the condition must stand. The lawyer can go ahead to the court of appeal but there are cases that have spent four years in the court of appeal. Appeal for bail application of some people have not been heard in four years and these people are still in Agodi prisons.
We pay lip service to the entire law system. But these are some of the things the Chief Judge should involve other stakeholders to resolve. It is not proper or good to keep people, good people, in prison. These are people that have not been proven guilty of any offence because they are deemed innocent until proven guilty by a law court especially in a matter not related to murder.
I think it is an eye opener that President Buhari is able to point it out. It is an indication that for the first time in our history this problem is now recognised at the highest level. We have been talking about it. So many times, we hear of Chief Judges setting up panels to look into decongesting prisons but they have never been effective because at the end of the day, the people released are insignificant as they find it difficult to release the majority of those who should be released. This is because most of the Chief Judges have not realised the depth of the problem.
Why should those awaiting trial be more than those convicted? It shows that a lot of injustice has been done to so many people. Most of the people there would be put on trial and many would eventually be found innocent. So, who will pay for the years they have spent in prison or detention awaiting trial. There would be stigma as well as other negative effects on them.
Even if a person is convicted and the case is on appeal, it is better to grant such a person bail. Our justice system should have a human face because, as it is currently, it does not have a human face at all.
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