State Govts Should Maintain Prisons —Giwa Amu

You named the free legal service unit for indigent persons Stephen & Solomon, what informed the choice of names?

Like every name chosen by a person or a company, it always relates to memories, memories of an activity that may have happened in the person’s life or an attribute of a person whom you admire. Forgive me, I must make reference to some Biblical statements or passages. For example, when the people of Israel were in tango with Moses, and he had to meet with God over the issue in contention. He asked God before he took his leave, “Who do I tell them has sent me?” and God expressly told him that he should tell them: “I AM THAT I AM”. From what played out at that material time, I can safely say that it is man who decided to call God Jehovah Jireh, Jehova Nissi, El-Shaddai because of His attributes not because that is the name He chose for himself. I choose the name Stephen & Solomon because of my late brother, Solomon, the former ADC to former President Olusegun Obasanjo. He was one of the people, while he lived, that was actually my mentor. In fact, he actually join forces with me to open my law office when I graduated. So, in honour of his memory, I decided to adopt his name, into the free legal services programme. That is without prejudice to the Solomon Giwa-Amu Foundation which was founded after him. I am not a party to them. I am not a member of that. I associate with them and I wish them well. The free legal services will reach out to people within my own constituencies in the legal profession. Stephen was my elder brother and father. He adopted me though he was my elder brother. He adopted me as a son and treated me truly like one. Though both of them are dead, I decided to honour and immortalise them by adopting their names for the free legal unit of A.G Giwa-Amu Law Chambers. Incidentally, my son is named after my elder brother, Stephen.

What motivated you to take on the task of decongesting the prisons that is largely seen as government responsibility?

I must say that I have respect for other law offices that take on that programme, but are not talking about it. I know as a fact that Professor Yemi Osibanjo’s law office engages in probono matters (free legal services) for indigent persons or persons in want of legal service. I have had the privilege to meet junior counsels from his chambers who engage in this. I also know that what is left of Gani Fawehinmi chambers after his demise, still engages in free legal services. I know that Femi Falana’s Chambers cannot be said to have failed in that regard too. Of course I also know of big time law offices that do not offer such services. This is inspite of the fact that they have huge resources. It is worthy to note that those of us who have had the privilege to have day-to-day dealings with prison inmates, we are touched by their plight. Whenever I walk into any of the prisons and I am confronted with problems, I am compelled to show some concern. For example, the case of female inmates at Kwale Prison in Delta State, where we found out that common sanitary pads were not provided for them. And when they begged us for provision of sanitary pads, we had no option than to meet their request. The buildings housing the inmates showed glaring evidence of wear and tear. They do not have functional kitchen where their meals are prepared and the makeshift that they presently use as I speak with you, had no roof over it. These are the plight that compels me to represent the interest of indigent detainees’ probono and I dare say that most of this people are not in detention because they are guilty of the offences said to have been committed, but because they never had the right proper legal representations.

Why do you think the Federal Government left the prisons to rot?

Like I said in an interview with another national newspaper, so long as the state does not bear the burden of maintaining the prisons, the place will remain congested. Though I agree that the issue of prisons is under the exclusive legislative list. But if a state government spends N4.5 billion to maintain the prisons, knowing that such an amount can tar so many roads; can help the health sector by equipping the hospitals, the government will cease to dump detainees in the prisons. We have found out that there are a lot of street trading offenders in prisons in Lagos State, charged to court by the government. The Lagos State government does not maintain the prison, does not pay the salaries of the warders, does not feed the detainees, yet, when fines are imposed, it is the Lagos State government that is the beneficiary of that fine. So, until the prison service is transferred, if not totally but in parts to the state, there will always be congestion.

That is one of the steps that can be taken to decongest the prisons. Secondly, if there is room for a suspended sentence, someone who is known to be a first offender should not be sent to jail for two years when there are options of fines. If it is a case of stealing for instance, he returns the total loot; you give him an option of fine of say N50,000, provided the loot is returned. There should be room for suspended sentence where a first offender is allowed to go, cautioned and discharged.

Take the case of a street trader, you arrest a child of say 14, 15, 16 years who is hawking wares not up to N4,000. He is charged to court and is sentenced to two months imprisonment with an option of fine of N20,000 when you can easily caution and discharge him because of his age. Not even because of his age alone, but because he is a first offender. If we do not unnecessarily create stringent sentences or bail conditions for those we arrest on our streets indiscriminately, then we would have decongested our prisons in no time. There is also the case of the convicted persons who should be allowed to go on parole like the American system. It is a system that allows a convict who after a few months into his term is observed to be of good conduct and is further counselled and allowed to go home and placed on parole and if they are not in breach of their parole conditions, they are left off the hook. You don’t just keep people there, some of which do not have records of being there. There is also the issue of judicial discretion too. I find that a lot of judicial officers abuse judicial discretion. They say judicial discretion is an art of understanding to discern between falsity and the truth. In all of these, there is no room for colorable glossies and private pretences, no room for personal aggrandizements, pecuniary interest. If that is what judicial discretion is all about which must be exercised judiciously the judicially in line with statutory provisions and judicial decisions, then it behoves on judicial officials looking at a fifteen-year old boy in the dock to exercise judicial discretion by cautioning and discharging him for an offence like street trading, if he is a first offender.

So, when judicial discretion is abused, you will have congestion in prisons. For instance, one inmate at Kwale, Sule was sentenced to four years with hard labour without an option of fine for stealing a cow. We had private discussions with the magistrate on the phone and I said: ‘My Lord, government approval for feeding an inmate on a daily basis is N500, multiply that with three hundred and sixty five days, multiply that again with four years, don’t you think our gross sum will be enough for us to buy more than five cows?’ This is the way the minds of judicial officers should work. You burn over five hundred naira a day, multiply it with three hundred and sixty five days by four years. Is it not better he is convicted for six months imprisonment, suspended sentence, caution and discharge him or give him an option of returning the cow allegedly stolen, if there is proof that he actually stole it. It is only in Lagos State that there is provision for plea bargaining which says you return what was stolen or you plea bargain with the attorney general.

Do you suggest that states should establish prisons as an effort to decongest them?

Exactly. That is what I believe, in the absence of this amendment to the provision of the constitution that places prisons under the exclusive legislative list. You know that prisons service is under the Ministry of Internal Affairs which is a federal business. The states should be made to have their own prisons. The local and state governments should be made to have their own police, all to compliment the federal police. Cases like theft, stealing, murder can be investigated by the state police, while cases like affray, petty theft, riots can be investigated by the local government police. It is a question of jurisdiction and territorial jurisdiction. If you are in local government A and an offence is committed there, the police in local government B cannot go into local government A to perform his civic duty without the tacit approval and permission of the police authorities in local government A, just like it is done with the police system presently. Once prisons are maintained by the state, I tell you the truth, you will no longer hear of prison congestion.

Are there constraints placed on your path, either by individuals or the government?

That is a good question. Sadly, I regret to say that it is even legal practitioners, who are the main culprits in frustrating the release of their own clients. Legal practitioners are the clog in the wheel of progress that is supposed to spin before their own clients could be released. I give you an example. Some of these cases that are tagged indigent are not actually indigent cases, they are cases where the lawyers engaged by the detainees are either incompetent or unwilling to perfect instructions given to them or unserious to do so for pecuniary interest. I will butress this with the case of one Mr. Godson. Pursuant to the instruction of the Knights of St. Mulumba Lekki sub council, we went there to try and release Mr. Godson who before then had a lawyer who immediately became very hostile when he saw that we had been briefed probono, to handle the matter but I calmed him down. The next thing he said to me is that he doesn’t think Mr. Godson needs assistance and I said he has been in custody for over one year for theft, why don’t you apply for his bail or perfect his bail. It was then revealed that the lawyer’s action were premised on the outstanding professional fees which Godson’s younger sister couldn’t afford and that is why he is in prison custody for a year. We have such constraints and that type of situation abounds everywhere. And again, even when we badge in, or force our way in because we know that the freedom of the person is at stake, we find ourselves most times in an embarrassing situation when the defendant is telling the judge/magistrate that we are his lawyers, but the other counsel, our colleagues is saying the defendant has not perfected his brief so he cannot hand over the files to them. We have such constraints.

We have the constraint of the office of the DPP where detainees are regarded as “files” and not as human beings. They just go to the office everyday and treat a file not based on the liberty of the person, but as a simple piece of paper, a file. In the case of one Mr. Sunday Barrywhite, information was filed in 2007. Till date, the man has not been produced in court to face trial. We wrote several letters to the Attorney-General and Commissioner of Justice, Lagos State, the Director of Public Prosecutions, DPP and they did not even give us the privilege or honour of a reply.

We also have constraint of disobedience of court order, where there is executive lawlessness. When the DPP or any other government official is served a court order and they refused to comply especially under the fundamental human rights proceedings. Funny enough, the Nigeria police have woken up to the awareness of respecting the people’s fundamental human rights. Hardly will you find a detainee being held in police cell for more than twenty four hours. Infact, the DPO is worried if a detainee is held more than necessary. But same cannot be said of other government agencies that disobey court orders as if the act is going out of fashion. Matters are even going to be worse off with the advent of politicking when it is common knowledge that politicians capitalises on every situation to score even with their opponents. Finally, we have the constraint of the families of these detainees or these indigent persons whose belief is that we are here to dole out money and that is why some will leave their homes, come here, believing that we are expected to meet their financial needs. We are not being sponsored on this course that we have chosen to take but we believe that God will continue to bless our law firm from where the resources that we have committed into what we have done so far is coming from? We have never received any grants from any individual or organization except from the members of Knights of St Mulumba Sub Lekki Council. The Knights led by the Metro Grand Knight Sir Ikemefuna, Sir Egbert Imomoh, Sir Obafemi Giwa Amu, Sir Jude Atoh and Sir Ben Ofodile have done great works both in finance and actions towards this project. Having said that, let me use this opportunity to call on well meaning Nigerians especially those of us who could afford the luxury of purchasing items in thousands of naira upwards for our families, to make the sacrifice of setting aside some few naira notes to help these indigent ones.

How do we check judicial officers whose exercise of judicial discretion is worrisome?

When it comes to the issue of judicial discretion, it can be abused. It can be exercised capriciously, it can be laced with personal aggrandizement. For example, a lawyer who goes to offer bribe to a judge and he is apprehended can be taken before the disciplinary committee of the NBA for professional misconduct. But in the absence of this, can you tell the disciplinary committee of the NBA, for example, that because he was not paid his professional fees, he refused to allow a detainee to be released. All that we are doing here is about conscience; it is about contributing our own quota to the society. But there is a powerful tool that government could use and that is taxes. All legal practitioners should be made to pay taxes. In approving tax rebate or reduction, each legal practitioner should supply a list of five or six probono matters he has done in a year as part of the community service.

For tax rebate, instead of paying say twenty thousand naira, the government can say, if you give us a list of five or ten probono matters you have done in a year, we can reduce your own to nine thousand naira, after all you will be helping the OPD, you will be helping to decongest the prisons. Apart from that, seminars are held everyday for judges and magistrates. Judges are well paid now like never before in this country. Upon appointment as a judge in Lagos State, I can safely say that your take home pay is about one million naira a month. You are given cars; you are given a house of your choice in Lagos with an option to pay. So it is in Delta, Bayelsa. So, there is no room to abuse judicial discretion. Lagos State judiciary has turned out to be the foremost in decisive statements based on justice. The Lagos State judiciary, apart from a pocket of what you may permit me to call old school judges, you can hardly find lazy judges sitting in Lagos State. What you now have in the majority in Lagos are young and vibrant judges. It was the Lagos State judiciary that first introduced the front loading system. When you front load documents, no need for lengthy statement of claims. Go straight to the point, front load your document. The judge is not frustrated by the load of documents before him. He knows the case he is going to meet. The opponents know the case they are going to meet, the judges are anxious to finish with the matter now, unlike those days where a case will be in court for an upward of six, seven, eight years even when the first witness must have dumped the court. Lagos State has blazed the trail in this regards.

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