The Nigerian Bar Association (NBA) recently announced plans to step up campaign for reforms in the criminal justice administration in Nigeria. The disposition was informed by assessed slow criminal justice administration in the country and the need for an overhaul. But in this interview with JOSEPH ONYEKWERE, a Lagos-based Senior Advocate of Nigeria (SAN), Norrison Quakers holds a different view. He believes that the bane of criminal justice administration is the people and not the laws. He also spoke on pre-trial detention and Alternative Disputes Resolution (ADR) among others. Excerpts:WHAT do you think is the problem with the criminal justice administration in Nigeria'The issue is attitudinal. It is character flaw or character defect. We have laws, which address the issue of speedy dispensation of justice and the issue of procedure, although it has changed now. When a suspect is apprehended, the presumption of innocence comes in and that is in line with the constitutional safeguard. Once investigation is concluded, the suspect or defendant is now taken to a court of competent jurisdiction for trial. The presumption is that all that is needed to be done in terms of such trial has been concluded. But what do we have these days' It can even be two or three-way traffic. For instance, if you have a defence lawyer, technical issues would be raised, which brings about delay. Sometimes, you can also have a prosecution who has not also prepared the case the way and manner it ought to have been prepared. You can also have a situation where the court itself is not available because the judge has to attend one conference or the other. So you will agree with me that the problem is character-based and human error than the law itself. What has happened over the years is that the accused persons or the defendants are taking advantage of the flaws in the system to continue to delay justice. I believe that we have enough laws in our statute books against this. But the delays are more of human factors, human frailties and not that of law. I will give you a particular example. I did a case of holden charge. How does it operate' The suspect is picked up by police and taken to a Magistrate's Court in what appears as to be an order in order to leapfrog or avoid a constitutional safeguard of the liberty of human person. What they do is to ask the court to give an order to remand the suspect in the prison custody pending his trial.At that particular stage, it is obvious to even the court that there is existing charge because the facts would have thrown up the case as it were. So the magistrate will know whether it is a case the court can hear or not before a remand is made. But the law allows the magistrate to make that remand order. Of course, when the order is made, the suspect is remanded in prison custody to await the outcome of conclusion of investigations or sometimes, the Director of Public Prosecution's advice. Then, the question is: if you are not ready to prosecute, why do you get an order to remand the suspect' Sometimes, you have a situation where a suspect is in custody for 10 years or 15 years or more without trial, because the police are not ready to prosecute. And these are some of the problems in the criminal justice administration and some of these problems are now being addressed.There is also the need to monitor or track the progress of a case. The Commissioner of Police could be summoned by the magistrate and the DPP could also be summoned by the magistrate too or even a prosecutor, to explain why a suspect has been in prison custody for a period more than three months.Which of the laws were really scripted for speedy dispensation of justice'The Criminal Justice Law of Lagos State is one. This is one law, that from the preamble, one understands what it is put in place to address. The criminal procedure law is also one of such laws. There are certain steps that a prosecutor is expected to take pursuant to the law. For instance, you have an accused person before you; he must be given what is referred to as proof of evidence. He must be given adequate time and facilities to prepare for his defence. So you make available the documents that you have collated, including the statements of witnesses, including other documents that you are going to use, as well as the statement of the accused person. In other words, a frontloading procedure is now in place. When you go to court to try an accused person, you are going to court based on your findings, based on investigations and documentary compilation of evidence that you are going to use against him. All these are as a result of laws that have been put in place. Each law that creates offence is subsumed in either the criminal procedure law. For instance, the Lagos State or the administration of Criminal Justice Law or the Criminal Procedure Law of Lagos State. There are procedures that you are expected to follow. If you fail to follow those procedures, that is where the defence comes in and takes advantage of what you have done but you have more than enough laws, in this instance - the constitution, administration of criminal justice law and the criminal procedure law as well as judicial authorities, that is, cases decided by the Supreme Court. If all these procedures are followed and all those other factors taken into consideration, I don't see why an accused person can escape justice, except where it happens on technical grounds.How many of the governors in the past that were arrested and arraigned, were convicted, except the former governor of Edo State' No other governor had been convicted. Why is it so' Is it that the law is not there or that the institutions that try the accused persons are not there' But the challenge that we have, like I keep saying, is attitudinal. The problem is in us. It is not in the dearth of rules or laws because we have more than enough. Our challenge as a people is more of our attitudinal dispositions to the workings of those laws.From what you have said, will it be right to say that this holden charge is the reason we have a lot of pre-trial detention cases today'Yes. Holden charge is actually a pre-trial detention mechanism in the sense that before a trial commences, the accused person must be brought to court. Now, in civilised societies, when the accused person is arrested, he is expected to be granted bail. And then, this particular procedure is also constitutional in the sense that once you are arrested, you can be granted bail if you will be present for your trial in court. What we now have is that the accused person is arrested, he is brought before the court for the purpose of legalising his continued detention. That is what we refer to as pre-trial detention. So, you are kept in the cooler until the state is ready to prosecute you. So when you are arraigned before the court, the court now grants you bail. You can only apply for bail when the accused person is brought before the court. That is another level of pre-trial detention. There are two levels - it could be the one at the level of the Police, it could be one at the level of the court, particularly, the Magistrate's Court. You are produced before the court, and the court makes an order to remand you in prison custody pending your trial at the court that has jurisdiction to do so.Is it backed by the law for a person to be in custody of the police'Yes, it is backed by the law. The Police Act empowers the police to arrest and also to detain.Does it have a time frame because the law provides that a suspect should not be detained without being charged to court within 24 hours'The time frame is a constitutional provision. It is the constitution that gives the time line. What happens most times is that to justify the continuous detention and leap-frogging the constitution provides, what the Police do is take the accused person to the court. In this case, you have two institutions - the Police, having the power to arrest and the court, having the power to try and determine the rights or otherwise of the accused person. So, you now have the police bringing the person to court for his trial and the court determining whether, indeed, there is a case for trial or not. So these are the two institutions that work in the administration of criminal justice system - the Police or any other agency that exercises what is referred to as prosecutorial powers or the powers to arrest and to detain. But the power of conviction only lies with the court and it is for the purpose of leap-frogging that constitutional provision of 24 hours that the issue of pre-trial detention comes in.However, it is not enough to take an accused person to the court to get a legal order for his detention. In fact, pre-trial detention is an illegal order because the question is: if you can arrest, before taking the accused person to the court, you must have finished with your investigations. And that enables the accused person to ask for his bail. If you have not completed your investigations, then grant the accused person bail at the level of the Police. Once it gets to the court, the presumption is that the case is ripe for hearing; that all you need to do, you have done. In that wise, we will be avoiding pre-trial detention. It will only come in for the purpose of bringing the accused person to court and the court exercising its jurisdiction to grant him bail or to refuse bail.In the light of what you said, we are currently harping on judicial reforms and the new CJN has put machinery in motion to that effect. What areas do you think should be the focus'Judicial reform, to me, should be holistic. I will always harp on attitude. Even what we have are not working effectively. And the reason it has not worked like what the late Professor Nwadialor said in his book is that 'our challenge as a people is not in want of rules or regulations but our attitude'. We have enough laws on every sphere of the society but our attitude in the workings of those rules and regulations is where the problem lies. I will give you an example: Judicial officers are accountable to the National Judicial Council. The National Judicial Council exercises disciplinary powers. Any judge that is found to have erred is bound to be sanctioned or punished by the National Judicial Council. So that is already in place. Which other institution will you come up with to address the issue of discipline because we already had one' But the challenge we have now is that of the attitude of our people. We have a situation where an erring judicial officer is allowed to walk away. A number of reforms have also been suggested. Part of it bothers on how to engage the system, for the appointment of judicial officers to be re-visited. Who are the calibres of people that you give appointment to as judicial officers' What is their background and pedigree' We must go beyond one or two, three persons endorsing those to be appointed as judicial officers.In ministerial appointment for instance, I am aware that there is what is called the State Security Service (SSS) screening. But again, some people have escaped the radar after the SSS screening because of the same Nigerian factor. And this is what is destroying this country. In terms of law, we have more than enough. I am happy with the expanded stakeholders into the committee that has been set up by the CJN. These are seasoned administrators, legal practitioners and seasoned stakeholders in justice delivery system. How far they can go with their suggestions is yet to be seen. Recently, I was reading the report by the Chief Justice of Kenya, who has just been appointed, who incidentally is an activist. The problem in Kenya is similar to ours. And in a statement he made, he said their problem was not in the rules or the regulations, but the people. He said judges must see themselves as being accountable to the Kenyan society. So, we must work hand-in-hand in order for the justice system to experience reform or the turn-around that we all desire. It must go beyond a few individuals making recommendations to feel the pulse of the people, to understand where we have gone wrong. That is what the problem is. And until we do that, we will keep groping. A typical example is the Lagos State Civil Procedure Rules. It is to ensure quick dispensation of justice. But from the time the rule was enacted till now, how far have we gone in terms of justice delivery' The challenge that we have has led to the need to review it. And I commend the Lagos State government, since in all honesty, the state is in the forefront of development in the rest of the country. And the reason being that when you come out with an initiative or measure, it is not yet a solution to the problem until you have applied it and it has worked. So what the Lagos State government is doing is development in stages - we put this in place and see how far it goes, if it is not going well, we retrace our steps, go back to the drawing board to see the lapses and loopholes and come up with a new policy framework and see how far it can go. Lagos State has a Multi-door Courthouse, which is an ADR mechanism to address disputes between parties to a large extent addressing the litigations, as well and taking litigation to the back burner as supposed to be your last option. At the end of the day, if you have a grievance, you walk into court and walk out smiling.But some lawyers believe that ADR mechanism may deprive them of professional fees that come from litigations. What's your reaction to this'ADR will not shut out litigations. ADR is like what we call first-line of engagement. It is when that fails that we go for litigation. So litigation is still there. Time has come for Nigerian lawyers to diversify. You cannot continue to do the same thing over and over again and expect a different kind of result. At the end of the day, what are we looking at here' It is the client's interest and the need to ensure that people resolve their disputes amicably. It could be a win-win situation or a winner-loser situation without any acrimony.Litigation has been there for quite a while and you can be sure that some Nigerians are beginning to lose faith in the courts. If Nigerians are losing faith in the courts, we need to come out with other mechanisms to ensure that Nigerians have confidence in our judicial system. An ADR is not foreign to the Nigerian society. It has always been part of us. Settlement of disputes between family members, in-laws and opposing parties are part of our culture, it is part of our system. If there is any lawyer who thinks that ADR will take professional fees off his table, then he needs to re-examine himself and re-appraise himself whether he wants to continue to practise as a lawyer.Back to the judicial reforms, you mentioned the mode of appointment of judicial officers. Many people have raised concern about this and it has begun to throw up different kinds of arguments. There are those who believe that Senior Advocates should be appointed directly to the appellate courts. What is your stance on this'I tend to agree. Let me give you an example. In England for instance, the country has a high turn-over of Queen's Counsel (QC), which is similar to what we have here as Senior Advocates of Nigeria. Now the entry point for judicial appointment in England is the QC. So an average judge in the United Kingdom is a QC. In Nigeria, we have so many Senior Advocates who are seasoned advocates, who will fare better at the Bench. Some can actually be appointed straight from the Inner Bar to the Supreme Court. I will give a particular example; the late Justice Augustine Nnamani was the Attorney General of the Federation at some point. He was a Senior Advocate and was appointed straight into the Supreme Court from being the Attorney General of the Federation. The late Taslim O. Elias, who rose to be Chief Justice of Nigeria, was appointed straight from the academia and he also made his own contributions. I think that time has come for us to revisit that. The experience is something you cannot wish away, particularly those who have contributed immensely to legal development. The best form of disengagement for them in the legal practice is the Bench because you cannot come from the Bench to the Bar but you can go from the Bar to the Bench.You have cited instances in the past where senior bar members were appointed straight into the Bench. Why was this practice discontinued'It is the Nigerian factor. Nigeria is a very peculiar society. If you have a vibrant and committed executive that ensures that things are done properly, this problem would not be there.Incidentally, all the people that we have mentioned were appointed during the time of General Yakubu Gowon. That was because he was dynamic. He was not stereotype. He went beyond what was considered the usual and did the unusual and the uncommon. And today, he is being celebrated as one who brought about modern Nigeria.I think that the will must be there. The reason we have not had it in past 20 years is that the will is not there. Some people think that if you suddenly do that, you will rock the boat. We suddenly realise that we cannot follow the constitutional provision because if you look at the constitution in relation to appointment, it doesn't say anything about rising from the High Court to the Court of Appeal and then the Supreme Court. What we have in place is a systemic progression. So you come through appointment into the High Court. From the High Court, you are promoted to the Court of Appeal and from there, you go to the Supreme Court. But if you follow the constitution strictly, you don't have to necessarily start from the High Court. The President can appoint you from the Bar to the Supreme Court. All that is required is 15 years of post-call.
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