Structuring Criminal Justice Administration in a Federal State: Priorities for Nigeria

STRUCTURING CRIMINAL JUSTICE ADMINISTRATION IN A FEDERAL STATE: PRIORITIES FOR NIGERIA

I am grateful to the Nigerian Bar Association for the opportunity to speak at this conference. The topics and quality of resource persons listed reflect a carefully thought out agenda setting programme. I trust that beyond the conference, we will ensure that practical steps are taken on reform proposals that are suggested and adopted towards restructuring our criminal justice system.

With the surge of brazen crimes - daylight kidnappings, wanton destructions and murders by bombers as well as the high incidence of unsolved high profile assassinations and the seeming inability of our criminal justice system to bring criminals to justice, we definitely must set about thinking and planning strategies for improving the system otherwise we risk the consequences of a failed state.

The major function of the state is social control, the protection of lives and livelihoods, and general security in the community. In many ways the success of other human engagements in the society largely depends on the extent of law and order, and or the assurance of personal and corporate safety. The failure of the criminal justice system is consequently a failure of the state itself. Indeed one of the most reliable indicators of a failed state is a criminal justice system that cannot deliver law and order.

It also affects the development of commerce- friendly justice policy because an ineffective criminal justice system is a serious disincentive to commerce. If terrorism by religious sects, robberies and offences involving violence are rampant and perpetrators are not being apprehended, tried, convicted because of problems within the administration of justice system – cost of doing business rises for both local & foreign investors. Perceptions of foreign countries of the safety and security situation in the nation are already negative even though many would consider them exaggerated.

I will not attempt to catalogue all the challenges that still bedevil our criminal justice system not just because I believe most of us here gathered are well aware of the problems and inefficiency of the system but also because a detailed critique of the Nigerian Criminal Justice System will fill substantial volumes. Rather, within the context of structuring criminal justice administration in a federal state, this paper will focus on making a case for state run police and penitentiaries

PRIORITIES FOR NIGERIA: THE CASE FOR STATE RUN POLICE AND PENITENTIARIES

The Criminal Justice System as currently structured has obviously failed. I believe that decentralizing the Structure with greater emphasis on a state run criminal justice system is imperative.

It is often said that crime is local- therefore the state’s response to crime must be local. Several high profile homicide cases remains unsolved, lack of intelligence on kidnappings and new crimes such as suicide bombings show that there is evidently a grave problem with the quality of police investigations. The reasons include inadequacy in terms of quality of human resources and expertise available for investigations, as well as funding and necessary equipment.

However, the larger issue is with the structure of the police force itself and the aberration of a centrally controlled police force in a federation of over 140 million people. The operational and management challenges of that arrangement are evident in the chaotic state of the Nigerian Police. From the point of view of effective coordination of the institutions of criminal justice, it is evident that there is a problem where the chief law officer of the state cannot determine how many police men he requires to keep law and order.

Many of the delays in the criminal process are based on the conflicts in priorities between the federal command of the police and local needs and the transfer of investigating police officers out of state without consultation with the state directorate of public prosecution. Besides it would seem quite basic that effective policing must be community-based, most criminal behavior is local. How can a Hausa speaking police officer from Kano State be effective in detecting and investigating crimes as DPO in a village in Abia state when he cannot speak or understand the local dialect? The case for State police is one that has made itself in so many ways. In that kind of arrangement there is ample room for a Federal Police force as well, which deals with cross-border crimes, (both internal and external) Federal offences, and collaborates with the local police in national assignments like censuses and elections. With the State police, states can rather like state judiciaries currently do, compete in innovation, reform and standard setting.

There is very little doubt that without the use of forensic science in criminal investigation, the most significant resources are simply excluded! There can be no excuse today, for the non-use of the broad range of criminalistics, i.e. the application of various sciences in the gathering of evidence, which are the results of examination and comparison of biological evidence. These include Impression evidence, such as fingerprints, footwear impressions, tyre impressions and ballistics (scientific examination of firearms and ammunition). Forensic DNA Analysis is also quite commonplace in many jurisdictions. That the Nigeria Police does not have its own laboratories with the capacity of DNA Analysis is regrettable indeed.

How about digital forensics? Which deals with the many scientific methods of recovery of data from electronic and digital equipment? A great deal of these forensic resources is quite affordable and the technology and training are easily accessible today. Fingerprint technology is clearly not rocket science. It is perhaps the oldest of the forensic technologies and had been available in the Nigeria Police force for decades. It however fell into disuse and along with the fact that no database of fingerprints even of suspects or convicts exists. Without such data bases, gathering fingerprint evidence is of limited use since there is little to match what is gathered with. If a state considers these as priority and can afford it, it will provide for it.

No great intelligence is required to demonstrate that impunity thrives in criminal behavior when there is no certainty of detection and punishment. The wave of kidnappings, which began in the Niger Delta, its victims usually being expatriates, has now spread across the country. In this year alone, 512 people have been kidnapped including fifteen young children in Abia State and most recently 5 NYSC members in Rivers State. Essentially, the spread of kidnapping is based on the successes of the perpetrators in the Niger Delta and now everywhere else.

Much of the problem of Nigeria stem from our inability to enforce our laws. Certainly, the challenge of organising an effective force on a national basis is enormous. It has proved virtually impossible. This is why the constitution of state run penitentiaries and police force are necessary now more than ever.

The usual argument against this proposition is that it threatens the corporate existence of the nation. While this fear is not utterly baseless, it cannot be the reason to continue with a structure that is obviously not working. Even now, state governments overtly or tacitly back vigilante, militia and other local Para-military forces. In my view, these organisations portend even more danger for the corporate existence of the nation, since they operate without any proper control or structured training and they tend to clash with policemen for one reason or another.

On the fear that state governments may abuse state police by using it to intimidate and harass political opponents, and to perpetuate electoral fraud, we must point out that same can be done with more disastrous effect, by the federal government, as was witnessed in the 3rd republic. It would also be recalled that the misuse of federal police accounted for the rise of military type bodyguard forces formed by some politicians to further their personal interests.

The proper use of a police force can only be guaranteed by responsible governments, whether at a federal or state level. As things are now, the Constitution has made several provisions to ensure necessary checks and balances. With a State controlled Police, law and order would be more effectively maintained within the sate. The personnel of such a force would be better able to contend with those problems. The issues that pose problems for the corporate existence of Nigeria should be tackled at source, so that every state feels a sense of belonging. Otherwise, overwhelming problems may arise spurring the spontaneous formation of ferocious groups, which have no responsible leadership or control.

What State Police should entail is the empowerment of State Governors and Houses of Assembly to equip and give administrative and operational directives to the Force in accordance with the peculiar circumstances of the state. A commensurate enlargement of the share of State governments in the Federation Account would follow, thereby leaving each of the States free to develop its Police Force in accordance with its own peculiar local needs. There would still be a Federal regulatory body that establishes minimum qualifications for employment into the force, make rules to prevent jurisdictional conflict and other inter state problems and perhaps maintain a basic training school for all policemen. However, the National Assembly should not be empowered to take control of a state police force except after the declaration of a State of Emergency in that state.

In spite of the fears expressed by the PRC on establishment of state police there are today in existence in Nigeria ethnic militias and vigilante groups performing the statutory functions of the police in the area of crime control. Under the defunct military dictatorship every military administrator or governor set up anti-robbery squad funded and maintained by state governments.

In order to take care of the fear that state governors may deploy personnel of state police to harass and intimidate political opponents, it is suggested that the Commissioner of Police of a state shall be appointed by the Governor upon the recommendation of State Police Council. The appointment should be subject to the ratification of the House of Assembly.

The State Police Council shall consist of:

A representative of each of the following;

The Governor
House of Assembly
Nigerian Bar Association
Nigerian Labour Congress in the State
Local Governments in the State
Body of Traditional Rulers
2 Representatives of Religious Organisations
Nigerian Union of Journalists

The Council shall elect its own chairperson among its members.

I suggest that we constitute a think tank to look at this proposal more closely and study other models that operate in other jurisdictions so we can design one that works for us.

Some of the models that exist are - Multiple Coordinated Decentralized Mode or Multiple Uncoordinated Decentralized Model. The Multiple Coordinated Decentralized model operates without a national/federal police force. Rather, there are numerous individual police forces established to have jurisdiction over specific cities or areas. Offices and official positions are established to ensure that the police forces run smoothly- there is a home office created to fund the forces and provide resources and chief police officers are given the duty to control regional forces. Countries that operate this model typically have Independent Police Complaints Authorities where citizens can file complaints against erring police officers. Other offices are also established to ensure that the police forces run efficiently in these countries.

However, under the Multiple Uncoordinated Decentralized model as operates in the United States, although there is no national police force, there are federal authorities assigned to specific jurisdictions. These federal authorities regulate federal laws that fall within their specific jurisdictions. The most significant and the largest areas of policing under this model are the state and local levels. Each state establishes a police force that only has jurisdiction in that particular state. Generally, the main role and the goals of the police forces are similar across the country.

In Nigeria, State Policing is likely to be more effective. In a centralized policing system, one strategy is typically used to treat diverse issues that may require different strategies and sometimes the decisions based on this are political rather than strategic. On the other hand, due to the smaller scale of state policing, there is the ability to tailor specific strategies for an issue; thereby increasing the likelihood of success. State run police and penitentiaries will be closer to citizens and more familiar with the needs of the people in its jurisdiction than the national government. It will also allow for a system of checks and balance as the lack of a dominant authority is likely to reduce the opportunity for abuse of the system.

I look forward to a fruitful conference

Thank you for listening.

Prof. Yemi Osinbajo, SAN

July 18, 2011