(Being the paper delivered by FEMI FALANA, SAN, at the virtual meeting held mark the first anniversary of the Human Rights Defenders and Protectors held on Sunday, April 18, 2021).
I extend fraternal greetings and wishes to the Human Rights Defenders and Protectors of Nigeria on the occasion of your first anniversary. Even though our organisation, Alliance on Surviving Covid 19 and Beyond (ASCAB) came in contact with your association a few months ago, our close collaboration has been beneficial to many victims of human rights abuse in the country. I recall that sequel to the clampdown on the #endsars campaigners last year by the security forces of the neo-colonial State your association teamed up with ASCAB in securing bail for scores of detained protesters and defending others who were charged with unlawful assembly, breach of peace and allied offences.
No doubt, there are many shared values between the work of the ASCAB and your association. Having realised that human rights cannot thrive in an atmosphere of impunity in a country ruled by anti democratic forces, we have, in alliance with other patriotic forces, decided to put the question of political power in the front burner. We are confident that after broad consultation with other concerned citizens and organisations we shall resolve to form a political party whose primary goals will include the actualisation of the provisions of chapter two of the Constitution with respect to the socioeconomic rights of the Nigerian people. I strongly share the view that without economic empowerment the Nigerian people cannot afford to seek legal advice and pay for legal services and thereby enhance the financial stability of Nigerian lawyers. In this presentation, we shall draw the attention of this distinguished audience to such laws. But before we do that it is germane to review the impact of ongoing strike of the judicial staff union of Nigeria (JUSUN) on the justice sector.
Financial autonomy for the judiciary
Sections 81(2) and 123 of the 1999 Constitution have guaranteed financial autonomy for the nation’s judiciary. But due to the refusal of the federal government and state governments to comply with the provisions of the Constitution the Judicial Staff Union of Nigeria (JUSUN) and Dr. Olisa Agbakoba SAN sued the Governments at the Federal High Court. Both cases were won by the plaintiffs. The Federal Government is said to have complied with the judgments while state governments have treated them with contempt. The Executive Order 10 issued by President Buhari to authorise the Accountant-general of the Federation to deduct the fund standing to the credit of the judiciary in the consolidate revenue of each state has been challenged by the Nigeria Governors Forum.
Even though the industrial action embarked upon by members of the Judicial Staff Union of Nigeria to enforce the judgments has had paralytic effect on the courts for the past two weeks it should be supported as financial autonomy for the judiciary will strengthen the democratic process. It will also improve legal practice as judges will be freed from the stranglehold of the executive organ of the Government and discharge their constitutional duties without fear or favour. However, in view of the deleterious effect of the strike on suspects and defendants who are languishing in custody we call on the various State Governments to address the demands of the judicial staff.
Few Lawyers in Nigeria
It is generally believed that Nigeria has produced too many lawyers. By 2010, it was disclosed by the management of the Nigerian Law School that the institution had not trained up to 70,000 lawyers since it was established in 1962. From reports in the media, Nigeria has since then been producing between 3,000 and 4,000 lawyers per annum. The Nigerian Bar Association (NBA has announced that it has “a membership of over 105,406 lawyers active in 125 Branches across the 36 states, including the Federal Capital Territory of Nigeria.” You will agree with me that the number of lawyers in Nigeria is not sufficient to service a population of 206 million people.
Although law is not an urban profession majority of Nigerian lawyers are concentrated in a few cities partly due to lack of opportunities in the rural areas of the country. Since human rights abuse is prevalent in the rural areas the cry of the victims should be addressed by progressive lawyers since the National Human Rights Commission and the Legal Aid Council are based in the Federal Capital Territory and state capitals. Since all Nigerian people are entitled to legal services I am compelled to urge young lawyers to take up the challenge of setting up law firms and offices in the rural areas.
N75 billion Youth Investment Fund
In October last year, Nigerian youths launched #endsars campaign and demonstrated against police brutality in the country. After the #endsars protest, the Federal Government announced a N75 billion Youth Investment Fund to address youth unemployment from 2021-2023. Since the disbursement of the fund has commenced I call on the branches of the NBA to assist young lawyers to apply for the soft loan for the purpose of setting up law offices. The NBA should equally monitor the state governments that announced plans to provide job opportunities for young people in the public service.
Duty of NBA to provide welfare and security for lawyers
One of the principal aims and objectives of the Nigerian Bar Association set out in section 3(13) of the 2015 Constitution of the NBA, is the “establishment of schemes for the promotion of the welfare, security, and economic advancement of members of the legal profession”. Year in, year out the leaders of the leaders of the NBA pay lip service to the welfare of lawyers. This is not acceptable given the fact that the NBA collects practicing fees running into hundreds of millions of Naira from members on a yearly basis. Apart from convening conferences and organising dinners the NBA hardly attends to the myriad of problems confronting its members. It is suggested that at least N100 million should be set aside to empower young lawyers to open law offices. Senior lawyers and corporate bodies should be encouraged to contribute to the fund. This policy will contribute to the empowerment of many young lawyers.
We have found that despite the prevalence of the infringement of human rights of the people living in the rural areas they are denied access to legal practitioners. Even the National Human Rights Commission and the Legal Aid Council are located in the Federal Capital Territory and state capitals. It is high time both institutions were compelled to extend their services to all victims of human rights abuse. At the same time, human rights organisations should respond to the demand of the people in the rural communities for legal representation. Our law firm will be willing to partner with lawyers that are willing to promote and defend human rights in the rural areas.
It is pertinent to inform you that due to the campaign of the human rights community and other stakeholders the national assembly has enacted the Administration of Criminal Justice Act, 2015, Anti Torture Act 2017 and Police Establishment Act 2020. It is now left for Nigerian lawyers to ensure that these laws are enforced to protect the fundamental rights of suspects. In the process, many lawyers are going to be employed by the Police and the ministries of justice in the various states. Regrettably, the Nigerian Bar Association has not taken advantage of the provisions of such laws to improve the economic conditions of its members. Permit me to refer to the relevant provisions of the laws which ought to be implemented without any further delay.
- Right of detained suspects to consult lawyers
By virtue of Section 6 of the Administration of Criminal Justice Act suspects arrested by the police and other law enforcement agencies are entitled to consult legal practitioners of their choice before making, endorsing or writing any statement or answering any question put to them after arrest. They are also entitled to free legal representation by the Legal Aid Council of Nigeria where applicable. Under section 17 of the Act, where a suspect wishes to make a statement it shall be taken in the presence of a legal practitioner of his or her choice, or where he or she has no legal practitioner, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a civil society organisation or a Justice of the Peace or any other person of his or her choice.
But in utter breach of the law, police stations are “no go areas” for lawyers. On a regular basis, lawyers who appear in police stations to be briefed by their clients are harassed and intimidated by the police for allegedly interfering with police investigation. It is submitted that since rich and powerful suspects are allowed to consult their lawyers all other suspects should have unhindered access to their lawyers or lawyers assigned to them by the Legal Aid Council. After all, the fundamental right of citizens to equality before the law is guaranteed by the Constitution. The recognition of the right of all suspects detained in police stations to consult counsel of their choice will create job opportunities for young lawyers.
- Legal aid for indigent citizens
The amendment of the Legal Aid Council Act in 2011 has expanded the scope and authority of the Legal Aid Council. The power of the Council is no longer limited to the provision of defence of certain criminal cases. The Council has established a service known as the Civil Litigation Service for the purpose of assisting indigent persons to access legal advice, assistance, and representation in court where the interest of justice demands, to secure, defend, enforce, protect or otherwise exercise any right, obligation, duty, privilege interest or service to which that person is ordinarily entitled under the Nigerian legal system.
In the same vein, the Council established a service known as the Criminal Defence Service for the purpose of assisting indigent persons involved in criminal investigation or proceedings and access to such advice, assistance and representation as the interest of justice requires. Furthermore, legal aid shall be granted to a person whose income does not exceed the national minimum wage while the Board of the Council may, in exceptional circumstance, grant legal aid service to a person whose earning exceeds the national minimum wage.
From the foregoing, the mandate of the Council has been empowered to offer free legal advice and assign legal practitioners to appear for indigent citizens in civil and criminal courts. In addition the Administration of Criminal Justice Act and the Police Establishment Act have imposed onerous responsibility on the the Council to assign legal practitioners to represent indigent criminal suspects in all police stations in the country. In spite of such enormous responsibilities the national assembly has not deemed it fit to increase the annual budget of the Council. The NBA ought to make a strong case for the employment of thousands of legal practitioners by the Council in order to enforce the provisions of the relevant laws.
iii. Restriction of prosecution of criminal cases to lawyers
Section 66 (1) of the Police Establishment Act provides that subject to the provisions of section 174 and 211 of the Constitution and section 106 of the Administration of the Criminal Justice Act which relate to the powers of the Attorney-General of the Federation and of a State to institute, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria, a police officer who is a legal practitioner, may prosecute in person before any court whether or not the information or complaint is laid in his or her name.
Apart from Delta and Kano states which have adopted the prosecution of criminal cases by legal practitioners including police officers who are lawyers other states have continued to have criminal cases prosecuted by lay police officers. The NBA ought to liaise with the Attorneys-General in the remaining 34 States with a view to amending the extant Administration of Criminal Justice Laws to lay off lay police prosecutors. Not only will the policy enhance the quality of criminal justice in all courts it will also compel the ministries of justice of the affected states to engage the services of thousands of lawyers.
- Posting of Lawyers to serve in all police stations
Section 66 (3) of the Police Establishment Act provides that at least one police officer who is a legal practitioner shall be assigned to every police division to supervise compliance with human rights laws and standards. In 2017, it was reported that there were 5,556 units of the police stations, police posts, command, and headquarters as of 2017. Since suspects are detained in all the police units it estimated that not less than 5,556 lawyers will be employed to ensure that the fundamental rights of suspects are respected by police investigators.
- Monthly visitation to police station by Chief Magistrates
Section 34 of ACJA and section 70 of the Police Act provide that a Chief Magistrate, or where there is no Chief Magistrate within the police division, any magistrate designated by the Chief Judge for that purpose, shall, at least every month, conduct an inspection of police stations or other places of detention within his territorial Jurisdiction other than the prison. During the visit, the magistrate may (a) call for, and inspect, the record of arrests; (b) direct the arraignment of a suspect; (c) where bail has been refused, grant bail to any suspect, where appropriate, if the offence for which the suspect is held is within the jurisdiction of the magistrate. Judges shall visit other detention facilities in their jurisdiction to carry out the same duties like the Magistrates.
All efforts to prevail on the NBA leadership to direct the members of the human rights committees in all the 125 branches to accompany Chief Magistrates and Judges during the monthly visit of police stations and other detention centres have failed. It is hoped that members of this Association will mobilize young lawyers to take up the assignment. If the visits are conducted regularly the incidence of illegal arrests and detention of suspects and other innocent citizens will be greatly reduced.
- Duty of NBA Officers to visit correctional centres.
By virtue of Section 21 of the Nigeria Correctional Services Act 2019 the President and other executive members of the Nigerian Bar Association are among the official visitors of correctional centres in the country. The functions of the visitors of Custodial Centres are :
- Visit the Custodial Centres and inspect the wards, cells, yards and other apartments or divisions of the Custodian Centre.
- Receive the complaint, if any, of the inmates.
- Inspect the journals, registers and books of the Custodial Centre and conditions of treatment of the inmates; and
- Call the attention of the Superintendent to any irregularity in the administration of the Custodial Centre or structural defect which may require urgent attention.
Since the Nigerian Correctional Services Act was enacted in 2019, the NBA officials and other official visitors have not carried out their statutory duties. Hence, congestion and other problems associated with the nation’s correctional centres have not been addressed. I call on the NBA leadership to visit the correctional centres, compile the list of inmates that have no lawyers and farm their cases to young lawyers who should be paid nominal fees and senior lawyers who may wish to render pro bono services.
vii. Appointment of lawyers as members of statutory bodies
The laws setting up several statutory bodies provide that the NBA shall nominate lawyers as members of the governing councils or boards of a number of statutory bodies. Some of the bodies are dissolved and not reconstituted by the government. For instance, the Chairman of the Council of the National Human Rights Commission is a retired judge or a lawyer of not less than 20 years experience. Two other members of the Council are lawyers. But since the Council was dissolved in 2015 by the Buhari administration it has not been reconstituted. Owing to the refusal of the Government to reconstitute the Council the rate of human rights abuse has been on the ascendancy. Yet, the Nigerian Bar Association has not deemed it fit to demand the reconstitution of the Council.
viii. Appearance of lawyers before special domestic tribunals and international courts
I have noted that many lawyers are not aware of the existence of some domestic tribunals set up to address specific matters. One of such judicial fora is the Investments and Securities Tribunal which has original and appellate jurisdiction to interpret and adjudicate on all capital market and investments civil disputes as specified under the Investments and Securities Act No. 29 of 2007. Notwithstanding the existence of the National Industrial Court the Industrial Arbitration Panel (IAP) is vested with the power to make provisions for the settlement of trade dispute. The Panel is constituted of a Chairman, vice Chairman, and at least ten members appointed by the Minister of Labour and Productivity.
In the same vein, only a few Nigerian lawyers are involved in the practice of law in the in regional and international courts and tribunals including the International Criminal Court, United Nations Human Rights Committee, United Nations Centre Against Arbitrary Detention, African Commission on Human and Peoples Rights, African Court on Human and Peoples Rights and Court of Justice of the Economic Community of West African States. I have been mounting pressure on the authorities of the Nigerian Law School to include human rights and humanitarian law in the curriculum of the institution.
- Prosecution of electoral offenders by lawyers
We have confirmed that the Police and other security agencies arrested hundreds of criminal elements before and during the 2019 general elections conducted by the Independent National Electoral Commission. The threat of former Inspector-General of Police, Mr. Mohammed Adamu to charge the the suspected electoral offenders before appropriate courts was not carried out. In the past, the prosecution of electoral offenders was usually sabotaged by state attorneys-general who filed nolle prosequi to terminate the cases due to political pressure from the ruling party in the states. To prevent such impunity section 150 of the Electoral Act, 2010 has vested INEC with the powers to prosecute any person who violates the provisions of the Electoral Act.
But the INEC has concentrated attention on defending election petitions without making arrangements to prosecute electoral offenders. I recall that after the 2011 general election the NBA collaborated with the INEC in the prosecution of electoral offenders. I was privileged to have coordinated the young lawyers who were assembled for the national assignment at the material time. Although majority of the electoral offenders were successfully prosecuted the policy did not continue due to the change of leadership in the INEC and the NBA. It is suggested that the policy be revived by the INEC and the NBA in the interest of credible elections in Nigeria.
- Creation of legal departments in local governments
A respected lecturer in the Nigerian Law School, Mr. Sylvester Udemezue has suggested to the Nigerian Bar Association to prevail on the authorities to establish legal department “in all the 774 LGAs (Local Government Councils) in Nigeria; Legal Departments in all MDA’s (Ministries, Departments and Agencies); Legal Departments in all police formations and stations; Legal Departments in all Universities, and schools; etc.” Mr. Udemezue has also suggested “the encouragement and protection of the right of access to courts at reasonably affordable fees and of representation by counsel before courts and tribunals as well as setting machinery in motion to retrieve or recover legal practice jobs/areas already stolen by non-lawyers.”
Prosecution of hardened criminal suspects
The police headquarters and the police commands in all the states of the federation as well as the Federal Capital Territory parade suspects allegedly involved in armed robbery, kidnapping, ritual murder, culpable homicide and other violent crimes. After the illegal parade and media trial, a few of the suspects are released while others are “wasted”. The NBA and the human right community should end such extrajudicial execution of suspects without trial.
From the information at my disposal, the national assembly has appropriated a huge sum of money for the trial of thousands of terror suspects who have been detained without trial for several years. A special fund has also been earmarked for the congestion of all correctional centres in all the states of the federation. The NBA should liaise with the office of the Attorney General of Federation with a view to ensuring that the prosecution of the suspects is farmed out to young members of the legal profession as the Federal Ministry of Justice does not have the capacity to undertake the prosecution of all detained terror suspects and prison decongestion.
In this presentation, I have challenged the NBA to take far reaching measures for the enforcement of the fundamental right of suspects and other citizens guaranteed by the Constitution and other relevant statutes. It is undoubtedly clear that if the aforesaid laws are religiously enforced the practice of law will greatly improve while the financial stability of lawyers will be assured. To stop the discriminatory treatment meted out to lowly placed suspects, the torture of suspects and other human rights violations we have requested the Police Authorities to furnish all police stations with copies of the Police Establishment Act 2020 and the Anti-Torture Act 2017. I have been assured by the Acting Inspector-General of Police, Mr. Alkali Baba that he will accede to our request.
Let me conclude my address by challenging the Human Rights Defenders and Protectors to collaborate with the human rights committees of the branches of the NBA promote and defend fundamental rights under the rule of law. Without the involvement of people the struggle for human rights cannot be won. In addition, you must link up with other progressive lawyers in the mobilisation and sensitisation of the people to become defenders of human rights.