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PDSS & Court’s Visit To Detention Centers: Panaceas To Allegation Of Unlawful Detention And Focus For Human Rights Activists

By: Hameed Ajibola Jimoh Esq.

P.D.S.S. and the court’s visit to detention centers under section 34 of the administration of criminal justice act, 2015: panaceas to allegation of unlawful detention and focus for human rights activists

The Police Duty Solicitor Scheme-herein after referred to as PDSS- established through Order 20 of the Police Order as amended and the Court’s visitation to detention centers provided under Section 34 of the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA- have become two schemes for effective assurance of justice in the administration of criminal justice system in Nigeria. This paper views that these two schemes if focused upon and diligently undertaken by the actors in the administration of criminal justice sector and human rights activists, will either eradicate completely or drastically reduce the case of unlawful detention in Nigeria by law enforcement agencies, hence, the recommendation for these schemes to be a focus for human rights activists.

The PDSS was introduced to Nigeria through Force Order 20 as amended which mandates the availability of Pro bono Legal Services by Duty Solicitors Stationed in Police Formations across Nigeria, thereby ensuring prompt access to justice for suspects and detained persons. The scheme is the actualization of the constitutional guarantee of access to Counsel upon arrest and detention in Nigeria. The PDSS focuses on protecting the rights of suspects (not defendants as ‘Defendant’ is properly used to refer to persons arraigned in court and undergoing trial) at all levels of the pretrial process, arrest, interrogation, detention and bail. On the 31st of October, 2019, the British Council, in collaboration with the Legal Aid Council of Nigeria and some other non-governmental organisations organized a training for Duty Solicitors. The panelists were Mr Folarin Aluko- NBA Chairman (Abuja Branch), Mr Clement Chukwuemeka- NBA Chairman (Bwari Branch), Mr Anugom Ifeanyi- NBA Chairman (Gwagwalada Branch) and Mr Bayo Akinlade- NBA Chairman (Ikorodu Branch), all in attendance. At this training, which additionally had in attendance: officers of the Nigeria Police Force of various low and high ranks, lawyers of all the three branches in the FCT-Abuja, legal officers of the Legal Aid Council of Nigeria, among others. Trainees were made to understand that the Scheme does not mean that suspects are clients to the duty solicitors rendering pro-bono legal services to the suspects rather they the duty solicitors just to render their free legal services even without knowing the suspects. However, where suspects require the duty solicitor to represent them further in courts, then, the duty solicitor should refer them to another lawyer or to the NBA which the duty solicitor represents for necessary provision of another lawyer in order to avoid any conflict of interest. Also, the scheme does not aim to empower the duty solicitor to intervene in the investigation being carried out by the police officers on the allegations of crime and on the suspect. Furthermore, the duty solicitors as lawyers were made to understand that lawyers and police are friends and colleagues in the administration of criminal justice system working towards achieving the same aim i.e. justice, so, must not quarrel or fight each other. Respect is reciprocal and must be undertaken at all times in the course of the duty. Furthermore, duty solicitors were advised to avoid being confrontational with the hosting police officers, not to have the preconceived mind of monitoring the activities of the police officers or the police station but to ensure that the due process of law is followed especially where statements were to be taken from the suspect to ensure that same is done in the presence of a duty solicitor (lawyer); and to boost public confidence in the criminal justice system; among others. I was also in attendance as a trainee at the programme. At the end of the programme, volunteering duty solicitors (including myself), registered their names and chose a police station convenient to them to perform the duty pro bono. It was also explained that though, the scheme is free of charge, nevertheless, the scheme has its own benefits which also has the overall satisfaction and giving back to the society what the society had given to the volunteering lawyers as a form of corporate social responsibility. One thing that I observed was that trainees were able to express their grievances which had caused confrontations between some lawyers representing suspects and some police officers in the past. Then, the cordial relationship between the lawyers and the police officers was strengthened. Though, views were shared to encourage the extension of the duty solicitor scheme to other detention centers of law enforcement agencies apart from the police station.

Furthermore, section 34 of ACJA, provides for court’s visit to detention facilities/centers thus: ‘34(1) The 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. (2) During a 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. (3) An  officer  in  charge  of  a  police   station  or  official   in  charge   of an  agency authorised to make an arrest shall make available to the visiting  Chief Magistrate or  designated  Magistrate   exercising  his  powers  under   subsection  (1)  of this section: (a) the full record of arrest and record of bail; (b) applications and decisions  on bail made within the period;  and (c) any other  facility  the Magistrate  requires  to exercise  his powers  under that subsection. (4) With respect to other Federal  Government  agencies  authorized to make  an arrests, the  High  Court  having  jurisdiction  shall visit  such  detention  facilities  for the purpose provided  in this section. (5)    Where there  is default by  an officer in charge  of a police station or  official in charge of an agency  authorised to make arrest to comply  with the provisions of subsection (3)  of this section, the default shall be treated  as a misconduct and.. shall be dealt with in accordance  with the relevant Police Regulation under the Police Act, or pursuant to any  other disciplinary procedure prescribed by any provision regulating the conduct of the officer or official  of the agency.’. However, there is limit of the application of the ACJA which has been stated clearly in section 2 of the Act thus ‘2.(1) Without prejudice  to section 86 of this Act, the provisions of this Act  shall apply to criminal trials for offences established by  an Act of the National Assembly and other offences punishable in the Federal  Capital Territory, Abuja.(2) The provisions of this Act shall not apply to a Court Martial.’ It should also be observed that the provisions of ACJA does not have a general application throughout the Federation’ i.e. it is not a State’s Law rather, it is limited to the application as provided for in section 2 of the Act, unless each other State adopts its provisions having the effect as that of section 34 of the Act which is the subject matter of this paper. Since this legislation, some Magistrates to my knowledge and the some of the visits which I have attended together with some of the Magistrates in the FCT-Abuja on behalf of the NBA as an Association, have taken this Scheme with relentless efforts. From my experiences, suspects have been allowed to speak and express themselves as to the various treatments that they have been receiving in the custody of the police even in the presence of the police officers in charge and they have been bold enough to dispute any contrary statements or defence made by some of the police officers, though, some of those grievances by the suspects were made as a result of ignorance of the criminal procedures. Suspects were asked by the Magistrate whether they were cautioned upon arrest and writing statements and whether they were informed of their right to counsel of their choice and on the number of meals given in the station a day. Also, the Magistrate granted those who deserved bail their bail, those who deserved transfer were guaranteed the quick transfer of their case file by the police and the police were to report to the supervising Magistrate within certain period of hours or days, those whose cases were due for trial were given date for hearing/trial to appear in the court (and not in the police station), those who confessed to the crime alleged and pleaded guilty were summarily convicted and sentenced by the Magistrate to a liberal sentence. So, the Scheme even though lasted for some hours, was able to decongest the police cells and reduced the cases of unlawfully detaining suspects in custody. I believe that if these two schemes are taken care of with seriousness, the issue of allegation of arbitrary detention (i.e. detention without abiding with the due process of law) will either be eradicated completely or be drastically reduced in no time.

Finally, I encourage lawyers, human rights activists, NBA and other non-governmental organisations to key into these two schemes by also providing financial support to those volunteered duty solicitors. I am aware that the NBA Abuja Branch (under the Chairmanship of Mr Folarin Aluko), the NBA: Bwari, Gwagwalada and Ikorodu (Lagos) Branch respectively has Committee for such duty solicitor scheme. Other branches are encouraged to do so (including young lawyers) in the interest of justice.

Email: hameed_ajibola@yahoo.com

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