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IX. Lack of Due Process of Law

The criminal justice system in Nigeria is in a state of paralysis, effectively unable to dispense justice in a fair and speedy manner. Every aspect of the system -- from law enforcement to the judiciary, through to the prisons -- is characterized by a combination of inefficiency, corruption and lack of resources. A characteristic feature is the shocking disregard for due process as guaranteed under the Nigerian constitution. To one extent or the other, every case of torture and ill-treatment by the police and other law enforcement agencies documented by Human Rights Watch was accompanied by serious violations of the due process of law including the following:

Acceptance of Forced Confessions

The acceptance of forced confessions is one of the most serious due process concerns identified by Human Rights Watch. Article 15 of the Convention against Torture provides, "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."  The Nigerian Evidence Act contains a similar provision.¹²² A number of the suspects interviewed by Human Rights Watch described how despite displaying visible signs of torture or ill-treatment, for example, bruises, scarring or broken bones, to judges or magistrates during their arraignment, the court officials did not question the admissibility of their confessional statement. Others told Human Rights Watch they were not given the opportunity to tell the judges they had been tortured. A thirty-four-year-old woman, tortured at the Lagos State police headquarters in January 2005 and whose case is described on page 33, was brought before Ebute Meta Magistrates Court No. 8 on February 17, 2005. She had difficulty walking unaided and showed other visible signs of injury, including bruising on her face, which was not questioned by the magistrate. She told Human Rights Watch: “When I arrived at the court I fainted. The Investigating Police Officer just left me there. As I faced the judge I had to be supported as I couldn’t stand.”¹²³

In such cases it is the responsibility of the judge or magistrate to ensure that statements extracted under torture or ill-treatment are not invoked as evidence in court proceedings.  If a defendant alleges during the course of judicial proceedings -- whether at pre-trial hearings, or at the trial itself -- that he or she has been compelled to make a statement or to confess guilt, the judge is obliged under international law to consider such an allegation at any stage and to order a prompt and impartial investigation into the allegation of forced confession by competent and independent bodies.

In the twelve northern states of Nigeria, which have adopted Shari’a (Islamic law) to cover criminal law, the acceptance of confessions extracted under torture can have particularly serious consequences. The Shari’a system, as applied in northern Nigeria, allows sentences that include the death penalty, amputations, and floggings. Human Rights Watch has documented numerous cases in the states of Kaduna, Kano, Kebbi, Niger, and Zamfara, where defendants have been subjected to harsh treatments or punishments, particularly amputations, on the basis of confessions extracted under torture. ¹²⁴

Failure to be Informed of Grounds for Arrest

The Nigerian constitution states that: “Any person who is arrested or detained shall be informed in writing within twenty four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”¹²⁵ The right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” is also guaranteed in the International Covenant on Civil and Political Rights (ICCPR), to which Nigeria has been a state party since 1993.¹²⁶ 

Many of those interviewed by Human Rights Watch said that the police failed to inform them of the grounds for their arrest or details of the charges or evidence against them. Numerous suspects did not know what crime they were being charged with until they were arraigned before a court. Others described to researchers how the charges of the alleged crime changed during the course of interrogation. For example, an eighteen-year-old man, whose case is described on page 37-38, was arrested in Lagos in August 2004 after a complaint to the police from a friend he owed money to. Initially he was interrogated in relation to the money he owed, but later was accused and charged with conspiracy to rob.¹²⁷

Absence of Legal Representation

The right to a fair hearing, including the right for a defendant to “defend himself in person or by legal practitioners of his own choice” is guaranteed in section 36 of the Nigerian Constitution. Article 14 of the International Covenant on Civil and Political Rights and Article 7 of the African Charter on Human and People’s Rights affirm the right of every person to legal assistance.¹²⁸

Of the fifty people interviewed by Human Rights Watch, only three of the criminal suspects and five MASSOB members had benefited from legal representation during their detention or trial. At the time of arrest, the police typically did not inform the suspects of their right to a lawyer and the suspects did not seek legal advice, either because they were not aware of their right to do so or could not afford to pay a lawyer. Those suspects who were to be arraigned before a court were similarly ill-informed of their right to legal representation by court personnel, including judges or magistrates.

The absence of legal representation helps facilitate the use of torture and other ill-treatment during interrogation. Representatives of local NGOs and lawyers told Human Rights Watch the police would be less likely to torture a suspect who has a lawyer for fear of being reported. ¹²⁹ They also explained how the provision of legal representation could help ensure due process is adhered to, challenge prolonged detention and increase the likelihood of a fair hearing.

International law affirms the right of every person to "have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it." ¹³⁰ The Legal Aid Council, a parastatal body, was created by the federal government in 1976 with the mandate of providing free legal assistance and advice to Nigerian citizens who could not afford the services of a private lawyer. However, like many other bodies set up by the government, the Legal Aid Council is seriously under-funded and unable to provide services in all but a small number of cases. The Legal Aid Council has offices in each of Nigeria’s thirty-six states, but the capacity of these offices is extremely limited, and in 2005, there was only one Legal Aid Council lawyer in each state. According to the Legal Aid Council’s Director of Planning, Research and Statistics, there were plans to expand this to two per state by the end of 2005. ¹³¹

In October 2004, the Legal Aid Council began a program to deploy lawyers to police stations and Magistrates Courts in Imo, Kaduna, Ondo and Sokoto States. In these states, chosen to reflect the volume of legal aid cases and physical congestion in prisons and police stations, four duty solicitors provide pre-trial legal assistance to help reduce prolonged detention of suspects. Since the start of the program, fifty-five suspects in Ondo State and sixty suspects in Imo State have benefited from legal services.¹³² While this is a tiny proportion of the overall number of people requiring legal assistance, such programs, if extended, could help reduce incidents of torture and ill-treatment by the police.

Prolonged Pre-Trial Detention

Section 35 (4) of the Nigerian constitution stipulates that the police must bring a person before a court of law within “a reasonable time.”  If there is a competent court of jurisdiction within a forty kilometer radius, “a reasonable time” is defined as twenty-four hours. If there is no court within forty kilometers, arraignment must take place within forty-eight hours or “such longer period as in the circumstances may be considered reasonable.”¹³³ If suspects have not been brought before a competent court of jurisdiction within two months they must be released unconditionally or “upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”¹³⁴  In practice this is rarely adhered to by the police. The overwhelming majority of people interviewed by Human Rights Watch were not brought before a court within the legally required period but were detained for periods ranging from several weeks to several months. The most extreme examples of lengthy pre-trial detention in police custody were found in Kano, where four men interviewed by Human Rights Watch claimed to have been held at the state police headquarters for one year, fourteen months, fifteen months, and two years respectively.

Even once a suspect is arraigned before a court, lack of co-operation from the police, congestion in the courtrooms, and lack of resources work together to prevent the speedy dispensation of justice. The Attorney General of Kano State and the Director of Public Prosecutions (DPP) for Lagos State both cited lack of co-operation or deliberate obstruction from the police as a major problem. They explained to Human Rights Watch that, in their own experience, the police deliberately withheld case files, or say they are still conducting investigations, in order not to produce the suspect before a court.¹³⁵ Lawyers and prison officials reported that some detainees were forced to bribe the police to take them to court or transfer the file to the DPP. ¹³⁶ Similarly, according to recent media reports, the Chief Judge of Delta State publicly accused police officers of withholding case files for the purposes of extortion.¹³⁷

In what is known in Nigeria as the “holden charge” phenomenon, the police regularly refer suspects charged with capital offenses, such as armed robbery and murder, to Magistrates Courts, knowing they are not of competent jurisdiction to hear the case. Local lawyers and human rights activists describe this as a deliberate tactic by the police to further punish suspects and to give the police extra time to conduct investigations.¹³⁸ As Magistrates are unable to exercise jurisdiction and without the authority to grant bail in capital cases, the suspects are remanded to prison, pending arraignment before a High Court. In the majority of these cases the trial is not concluded within the legally required two-month period. Approximately 70 percent of Nigeria’s prison population is awaiting trial. Some inmates have been in prison for several years, for example eight, ten or even fifteen years, far longer than the maximum sentence had they been convicted.

Magistrates Courts, which handle about 90 percent of all criminal cases, are extremely overloaded and as a result may take years to complete a case.¹³⁹ It is common for suspects to be taken to court for the commencement of their trial and for the judges or magistrates to be absent. In other situations the delay is down to lack or mismanagement of resources. For example, a lawyer in Kano told Human Rights Watch she had come across cases where the accused had to buy the petrol to fuel the police vehicle to take him to court. ¹⁴⁰