Dr. Uju Agomoh is a lawyer and prison reform activist. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE and YETUNDE AYOBAMI OJO, she explains some of the salient contents of the recently enacted Nigerian Correctional Service Act, which has replaced the Nigerian Prisons Service Act and predicts that the country would have a smooth justice administration if the law is fully implemented.
What difference will the Nigerian Correctional Service Act make in the country’s justice administration system?
If the Nigerian Correctional Service Act (2019) is effectively implemented, it will improve so many aspects of the Nigerian criminal justice system. For example, it will give opportunities for the greater application of alternatives to imprisonment/non-custodial sanctions, compliance to international human rights standards, reduction of prison overcrowding, and increased application on rehabilitation and reintegration programmes, among others. Specifically, this include the following.
It will provide correctional officers across the entire states of the federation that will be available to supervise those that the courts will sentence to non-custodial measures. This will encourage greater utilisation of non-custodial measures. In addition, it will provide a better and alternative disposition measures for offenders that do not require custodial sentences (imprisonment), especially petty/minor offenders and others whose offence, age, and antecedence/background and circumstances do not require imprisonment.
In addition, it will enable further supervision and facilitation of reintegration in the community by correctional officers, especially regarding supervision of those on parole and those coming out of prisons/custodial sentences who are being provided with aftercare services.
It will increase the quality of justice dispensed by providing the correctional officers and platforms for the facilitation/provision of restorative justice models and these will be applicable at the different phases of the criminal justice process where suitable and agreed by both the victim and the offenders. With this, more victims will be able to have the opportunity of having closure for the offences committed against them. This approach will help facilitate healing, restoration, reconciliation and transformation both for the victims and the offenders.
The correctional officers will now play more active roles in prison/custodial center overcrowding. This the law has done by having them tasked with the activation of early warning signals by requiring them to send notification to all relevant stakeholders whenever the prison/custodial centres is about to exceed the official capacity and by requiring them to refuse admission after the expiration of the three-month deadline following the earlier notification. The intent of this provision, which is captured under section 12 of the Act, is to enable checks and balances to be instituted with regards to the control, inflow and outflow of persons into prison/custodial centres and to encourage all key actors in the determination of these inflows and outflows to take active remedial and sustainable steps to control/prevent the prisons/custodial centres from holding inmates beyond their official capacities.
Establishment of Mental Health Review Board in all the states of the federation by the Controller-General of the Nigerian Correctional Service. If the provisions on this and other provisions in relation to treatment of inmates with mental disabilities as contained under section 24 of the Act are effectively implemented, it will help address the current problems faced by mentally disadvantaged persons with the Nigerian criminal justice system. For example, the issue of having the so-called ‘civil lunatics’ (those who are detained in the prison asylums but have not committed any criminal offence) will be reduced to a great extent.
Another notable improvement that this new law will bring on the administration of criminal justice system if fully implemented is the prevention of mixing of young offenders with adult and hardened criminals. Section 35 of the Act states that young offenders’ institutions be established in all the states of the federation and that these should serve as Correctional and Rehabilitation Centers for these young offenders.
Another is the enhancing of the custodial centre visitors and inspections mechanisms. This is now expanded with clear functions and frequency of such visits/inspections. This will go a long way in strengthening the external monitoring/oversight mechanism on the custodial service and will further help to entrench good correctional practices and human rights compliance. These are just to mention but a few.
You, alongside other pressure groups, participated immensely in putting the Act together. To what extent has the Act conformed to international best practices?
Compliance with international human rights standards and good correctional practices was clearly stated under Section 2 of the Act as its first objective. It conforms to international best practices in so many ways. Many of the provisions of the Act were inspired and guided by the United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), the UN Standard Minimum Rules for the Treatment of Female Offenders (The Bangkok Rules), and other international human rights instruments. Let me give you a few examples of these: Rule 11 of the Mandela Rules states that ‘The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment….’ The Nigerian Correctional Service Act states that ‘there shall be a provision of separate facilities for female inmates in all states of the federation (Section 34) and ‘Young Offenders shall not be kept in adult custodial facilities. The Correctional Service shall establish separate male and female borstal institutions for juvenile offenders in all states of the federation and their treatment, including rehabilitation, shall be the underlying principle for the custody.’
Rule 28 of Mandela Rules: ‘In women’s prisons, there shall be special accommodation for all necessary prenatal and postnatal care and treatment. Section 34(3) also provides same ‘…. provision of a creche in every female Custodial Center for the well-being of babies in custody with their mothers, and prenatal, antenatal health care and sanitary provisions for female inmates.’ Rule 97 of the Mandela Rules states that 1. ‘Prison labour must not be of an afflictive nature’. 2. ‘Prison shall not be held in slavery or servitude.’ 3. ‘No prisoner shall be required to work for the personal or private benefit of any prison staff.’ Section 15(1) of the Nigerian Correctional Act 2019 even used same wordings as above where it states that: ‘Inmates shall not be held in slavery or servitude, and labour carried out by inmates shall neither be of an afflictive nature or for the personal benefit of any correctional officer.’
Section 9 of the Nigerian Correctional Service Act gives power to the Minister to declare (by order in the Federal Government Gazette) any public building, with requisite facilities in an appropriate location within Nigeria, to be a Custodial Centre; and specify the area and the landmass for which the Custodial Centre is established. This is similar with the provision under the Prison Act CAP 29, under section 2 (1) and (2). The difference now is that under the new law, there is a proviso, which states thus:
‘Provided that in every building so declared as a Custodial Centre, sleeping accommodation shall meet all requirements of health with consideration given, among other things, to adequate floor space, water and sanitation amenities, lighting and ventilation’. This is consistent with Rule 13 of the Mandela Rule, which provides that: ‘All accommodation provided for use of prisoners and, in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation’. Same also with Rule 42 of Mandela Rules which states that the general living conditions addressed in these rules in relation to light, ventilation, temperature, sanitation, nutrition, drinking water, access to open air and physical exercise, personal hygiene, health care and adequate personal space, shall apply to all prisoners without exception. Section 13 of the NCS Act 2019 aligns with the provisions of the Mandela Rules with respect to prisoners’ file management. There are also many other provisions which comply with international standards, including on documentation inmates. The above are only but a few.
Besides the change of name, what, in your view, needs to be done to ensure that the Nigerian Correctional Service Act achieve its purpose?
There are several steps to be undertaken. These also need to be structured in terms of immediate, short-term, medium-term and long-term implementation phases and they include the required internal adjustment processes, capacity building, awareness creation, adequate funding. I am aware that some steps are already being undertaken to initiate some of these.
How would you rate the percentage of reformation and rehabilitation of inmates before the signing of the Act?
Several studies that have been carried out portray the reoffending rate in the country as ranging from 60 per cent and some much higher than this figure. This is the reason why we need to focus a lot on ensuring the effective reformation, rehabilitation and reintegration of offenders. The NCS, if well implemented, will enhance this but much more needs to be done, including addressing the problem of stigmatisation of ex-offenders/ex-prisoners. This impedes their effective reintegration and reduction of offending behaviour. There is need for us to help unlock the ‘second prison’, which is what this amounts to. In Singapore, there is a very successful programme that they run which helps to address this problem. This is called the Yellow Ribbon Campaign aimed at breaking the barriers of stigmatisation against prisoners/ex-prisoners/ex-offenders.
The issue of prison congestion has become a clog in the wheel of justice administration. Do you think this Act would assist in decongesting the Prisons, without a serious commitment to full implementation?
Without a serious commitment to full implementation of the Act, there is no way the potential effect and impact of the new law on decongesting prisons will be achieved. On the other hand, if the provisions of the Act in relation to this are fully implemented, certainly, it will go a long way in decongesting the prisons in two ways, namely by controlling the inflow of inmates into custodial centres to ensure they do not exceed the official holding/lock-up capacities and triggering the early warning signal to alert all relevant stakeholders to commence remedial and sustainable steps as soon as there is the danger that a custodial facility is about to (or have exceeded) its official capacity. It will also help by providing the personnel (correctional officers) the platform to enable the supervision of offenders granted non-custodial sentences and encourage increased utilisation of non-custodial measures as a disposition measures by the courts.
What happens if a female prisoner is found pregnant under the new law?
On admission, if a female prisoner is found pregnant, she will be provided with the necessary medical care and support. However, the Act states that if she was found pregnant while in custody, an investigation, including DNA analysis, where needed, shall be conducted to ascertain who is responsible and the perpetrator shall be prosecuted.
Does the Act take care of inmates who are on death roll or those in life sentence?
The Act takes care of all classes of inmates.
What category of offences should qualify for non-custodial by the judges?
The factors that should guide the court in awarding non-custodial measures are contained in relevant laws such as the Administration of Criminal Justice Act, ACJA (2015) and the Administration of Criminal Justice Laws of various states. These include factors such as the trivial nature of the offence, the character, antecedents, age, health or mental condition of the defendants charged, and the extenuating circumstances under which the offence was committed. This can be seen in section 545 (1) of the ACJA.
Will removing police prosecutors and replacing them with trained lawyers enhance justice delivery in your view?
Many have argued that this should be the case and we see this provided for in some of the Administration of Criminal Justice Laws. Some have argued that this will not enhance justice delivery. In my view, we need to ensure adequate training and capacity building are provided for all prosecutors to ensure diligent prosecution of all cases. Beyond the knowledge and capacity argument is the need to ensure that prosecutors bring the right attitude and diligence to their work. Also, there is need to ensure that there is proper coordination between the investigating officers and the prosecuting officers. Most time, this is not the case even in the same agency. This negatively impacts on the quality of prosecutions and consequently the quality and effectiveness of the administration of justice system in the country.