Professor Chidi Odinkalu is the chairman of the National Human Rights Commission (NHRC). Odinkalu, who is a Law lecturer at the Harvard Law School, Cambridge, Massachusetts, is also a senior legal officer for the African Programme of the Open Society Justice Initiative. He speaks with AHURAKA ISAH on criminal justice administration and other legal matters as they relate to human rights issues in Nigeria.
On the issue of adopting plea bargain concept in the administration of criminal justice, you seemed to have maintained a position that ran counter to the view of the Chief Justice of Nigeria (CJN), Dahiru Musdapher, who felt plea bargain is of dubious origin which must never be allowed in our legal jurisprudence. Why have you stuck so hard to your ground on this matter?
I think we both agreed on some fundamentals of criminal justice administration in the country. To start with, the CJN loves this country, and as such, he wants a criminal justice system that can work, and a criminal justice system upon which people can be held accountable. And I do too. To me, we are just philosophising different ways of going about that.
In my view, we boast of a criminal justice system that gives room for the conviction of fewer people when crime has risen or rising. Public perception of crime has also risen. Now, we can pretend that this is not the case and the only way we can do things is by sending everybody into court, taking evidence by long hand, waiting for the judges to write their rulings and judgements by long hand.
That is not the reality. The reality is, as I had said, our capability to do justice and reach conviction has been denuded, and we know how and why. There are many more lawyers competing for a limited time of court. And what plea bargain opts to do is to help in effective administration of this case load.
The problem, which I think all of us agreed with, is that the system has a lot of dysfunctions on the grounds that there are several things happening in criminal justice system that ought not to be happening.
But that is not an objective for plea bargaining as a concept. It is an objection to the way we do things in Nigeria. In that case, it is the responsibility of the operators of criminal justice system at the top of which people like the chief justice, chief judges and attorney generals are to make sure that the system works properly.
And how can they do it? That involves proper directives, proper policymaking to regulate the process, proper training, monitoring of the system and moderate the system of proper reporting.
It also includes designating line managers for managing that system and relating it properly. I think that can be done, otherwise we are saying we have lost faith in Nigeria. And I cannot believe that anyone who holds senior public office can do that.
Now that Steven Oronsaye has recommended that even the anti-graft agencies in the country be scrapped, we are yet to know the alternatives...
That is an opinion. In democracy, everybody has a right to hold an opinion. If one person feels they should be scrapped, another person could as well say no, they should not be scrapped. These opinions at the end would be put forward to the legislators who enacted laws for their establishment in the first place.
Through process of debate, proper ideas would win through. I don’t think we should be afraid of one’s view or the other. The good thing about democracy is in its instrument and mechanism even if they are messy, because at the end if we allow all the public institutions to work and allow all the ideas to come out, the best ideas would more or less in most cases win through. I’m not afraid of anybody saying we should scrap the anti-graft agencies at all.
In your opinion, do you think we can afford to scrap the anti-graft agencies under this heavily corruption-laden public institutions in the country?
We are back to capability and incapability of our criminal justice system talk once more. Now, the crime of corruption is in the criminal code, it is in the Penal Code. When last did we prosecute upon those laws?
Corruption is in different hierarchy. There are subsistence corruption; like police officers in the street that collect N20, N30, because there is a senior officer who has been oppressing them and short-changing or collecting their salaries and they don’t really have anything to feed on.
There is also the case of civil servants who have not been paid for two to three months. And to make amends, they resort to converting their positions into mechanism to ask for money from those that come for their services. I look at the two scenarios as corruption. But it is subsistence. Now, you can prosecute that kind of thing under different laws, like the penal or criminal codes.
You can walk your way from here to the crime of plunder. James Ibori took $250 million for whatever. Tafa Balogun consumed over $100 million of the police fund. These belong to plunder, they are crimes that destroy our patrimony, because these people don’t just take the money, they also destroy the mechanism by which they can be held accountable.
So, the injury done to the public faith is exponential. And for those kinds of crimes, you do need special mechanism or devices to tackle them and bring the perpetrators to justice.
Of course, I would like to live in a country in which a police constable can go and arrest the inspector-general of police (IGP) for stealing $100 million. The reality is, we are not in that country yet. And therefore, I do see the need in having specialised entity that is equipped to do that.
Now, I don’t know why we have to call them the EFCC or ICPC, I think it is not necessary. Do we necessarily need the EFCC and the ICPC. I am not sure we do. But again, that is a matter for public policy debating and we should let the best idea win through.
I could see why some people would want to argue that we could do with merged EFCC and ICPC. Why not? It is a question of renewing the capabilities of the relevant institutions. Do I, however, see the EFCC, ICPC and police living under the same roof? That seem improbable.
Some people have been arguing that we should do away with death penalty in our modern penal laws like in many other countries now. Do you think we have gotten there yet?
I don’t discuss nor debate death penalty in Nigeria. And the reason is this; if you go out and come back home safely in Nigeria everyday, you must thank God. The average Nigerian citizen lives under the threat of culpable punishment or arbitrary death.
There are lots of things that can kill you in Nigeria. A militia can kill you, you can suffer accidental discharge from a police officer on the street, you can be killed by armed robbers, a car can run you over on the road and disappear, there is the bad weather, an electric pole can fall on you, there are ritualists hunting for human parts, just to name few.
The number of things that kill here are just too many. I have lived in so many countries in the world. I don’t attend funeral as I do here. So, we’ve got to reduce these spectres of deaths. And it is real. We cannot have a country with say eight to 10 per cent growth level and falling life expectancy. And that is why I don’t discuss death penalty.
In Nigeria, a mother dies every 10 minutes during child birth. Everyday, we lose about 141 mothers in child birth. You know what that mean. Making love in Nigeria is dangerous. So, why should I be discussing death penalty.
You know, we have a national average of about 565 deaths of mothers in every 100,000 mothers in child birth in the country.
That means our women are dying just giving birth to renew our specie, and that is unpardonable. Now, if we have that and you don’t want to discuss it, and you are having me to discuss death penalty, of what use is it? You can’t compare the loss of lives through extra-judicial killings, Boko Haram’s bomb detonations and armed robbery attacks with the number of persons awaiting death in our prisons.
And because my focus is on lives generally, I don’t want to privilege death penalty over and above these more serious causes of death.
The case of suspended Court of Appeal president, Justice Ayo Salami, has dragged the judiciary in the murky waters of the nation’s politics. The National Judicial Council (NJC) has asked President Goodluck Jonathan to recall him. What do you feel about the whole setup and your advice to President Jonathan?
...I read reports of various committees NJC had set up in this matter, and they left very sad tastes in the mouth. It is very unfortunate that the highest level of judiciary came to that. I would rather not publish what my advice could be. My grandmother told me that if I cannot say a kind thing about a person or a set of people, I should keep my mouth shut.
The National Human Rights Commission (NHRC) contributed towards having a Freedom of Information (FOI) Act, what measures are the commission putting in place to ensure its implementation to the fullest?
The commission does not have a monopoly of overseeing or ensuring compliance or implementation of the FOI Act. That is the duty of the Attorney General of the Federation.
But the commission can do two things, which are the promotional roles to enhance awareness, creating model to guide public institutions on compliance. The commission can adjudicate on dispute over rights abuses that are brought before it in line with the NHRC Act 2005 as amended in 2011.
Promotion and advocacy can help to bring idea or attention to different entities. But there is still a limit on what the commission can do on its own. It mostly see itself as a co-actor with several agencies in the public service or at the federal level to help raise awareness on what is possible in terms of compliance.
As a result of Boko Haram’s bomb blast escapades in the northern part of the country, military roadblocks have been created all over leading to long queues on our roads. But the more worrisome situation is the alleged cases of killing spree by the JTF of some perceived Boko Haram members. What is the commission doing on these emerging ugly trends?
I come from the South-Eastern part of Nigeria. I’m from Imo State, to be precise. Up to about two years ago, if you go to the South-East or South-South, you would definitely have experienced the same thing. If you travelled from Abuja to South-East by road, you would not see any road block until you got to Enugu State.
In one particular trip, between Abakaliki and Nsukka, two and half years ago, I counted about 57 road blocks. It used to be also that if you were going from Abuja to Kano, you won’t see one road block. Right now, you cannot stop seeing road blocks. The journey from here to Kaduna, which used to take two and half hours, can now take you five hours.
Those who are managing our national security infrastructure now have a serious problem in their hands. We have got to find some ways of managing this problem in such a manner that it brings support from citizens rather than alienating them, thereby creating frustration.
The security operatives need the support of the citizens to succeed. Whatever the country confronts, you need citizens to fight it. You need citizens to give information about what is happening in order to fight it; you need citizens who can trust the security agencies enough to believe in them.
No security institution survives by fighting its own people, or by not having support of its own people; particularly in the kind of situation we are in now. So, it is a delicate balance and I think that delicate balance has got to be worked out fine. Everybody has a responsibility to achieve that. How we do it, we have got to think properly about it.
It is a settled talk that the prison congestion was caused mostly by cases of awaiting trial. There are all forms of rights abuses. How is the commission addressing this sad situation?
It looks easy, but it is a complex problem. First of all, under the NHRC Act 2011, the commission can monitor the prison condition and address it. But, it doesn’t really help too much on the underlying problem. The reality is that Nigeria is highly under-imprisoned. We have just less than 50,000 prisoners and detainees from a population of nearly 170 million.
Whereas, South Africa has less than a third of our population and their prison population is over 150,000 inmates. The United Kingdom has a population of just 58 million and the prison population is near 90,000 inmates.
This tells you that our prison capacity is low. Yet, our awaiting trial detainees are about 80 per cent of our 50,000 prison population. That means only 20 per cent of our prison population are convicts. It goes with what we were discussing on our criminal justice system and plea bargaining concept.
If you cannot convict people, you are not keeping the real people who should be in the prison. They are outside there causing trouble.What do you do with them, how does the system address them? And it is something we address systematically. If we cannot put people away who are causing trouble in our country and in our public places, it means there is public insecurity.
And security agencies are going to find ways and means of addressing the problem, otherwise they are going to come under pressure. This is why we have a problem of extra-judiciary execution, because security agencies are under pressure to produce result.
Yet, on the other hand, the criminal justice system, the lawyers and judges are creating jurisprudence that undermines security agencies. And the security agencies are like saying, well we have got to do something otherwise we are going to lose our jobs.
It seems to me that the judges and lawyers, police officers, intelligence agencies and the politicians have got to come together to sort this out. Nobody wants to live in a state of insecurity.
But nobody also wants to live with criminal justice system that creates jurisprudence that doesn’t work, and does not protect people. For instance, you have a convict called James Onanefe Ibori, he showed up in court and the court cannot say we convicted him so many years ago.
We do not have a fingerprint system; we do not have a system that can collect, preserve or lead evidence properly in the court.
Mustapha spent 13 years in detention before he was convicted. Nobody wants to spend 13 years before securing conviction.
Although, I’m not laying any blame whatever, the problem is in the system. It has to be fixed, otherwise we are going to continue having it.
There is this perception in some quarters that since he who pays the piper dictates the tune, and that the commission being an agency of the government, it may easily compromise in rights abuse disputes involving the government, what would you want to say on this?
Judiciary is also a public institution and they give judgement against government in appropriate cases. I don’t think there is problem here. The important thing is to be fair and to apply the law fairly.
And when you do that, hopefully people would respect the fact that the rules have been applied judiciously. Somebody has to apply the rules, and do it fairly and with reference to the laws.