1.0 INTRODUCTION
In philosophical anthropology, nature and nurture are the major components of what a man is.
The former consists in the biological factors with all the traits emanating therefrom, while latter
is more of the sociological factors that contribute in building up one’s character. Criminologists
are divided in accepting which actually plays major role in the lives of offenders and they have
come up with different theories over the years. Be that as it may, the most important point here is
that it is conventionally accepted that criminals and defaulters are to be confined in a place
popularly known as prison, but referred to as correction centre in some countries like Nigeria. It
is geared towards not only meting out just punishment that will serve as deterrent to others, but
making the suspect/convict sober and repentant before possible re-integration into the society.
While still in prison, it is worthy to note that prisoners are humans too; their ‘humanness’ is not
extricated from them due to the offence they committed. The implication of this is that they also
enjoy certain fundamental human rights, although in a limited form. While it is true that
fundamental human rights are not absolute for anyone, there is however a special sense of
limitation for prison inmates. Nevertheless, limitation here does not take away use. All prisoners
shall be treated with the respect due to their inherent dignity and value as human beings. 1 The
visible manifestation of presence of these rights ought to be seen inter alia in the environment
where they are kept, their clothing and bedding, their food, accommodation, and health-care
services. 2 The extent to which this ‘ought to’ is applied in Nigeria will be appraised here.
2.0 MEANING AND IMPORT OF RIGHTS
The modern man has built a society where there is social contract. Individuals come together to
submit their authorities to formed government with the agreement that their rights and privileges
will also be protected. Although man is a rational being, he has selfish tendencies and individual
idiosyncrasies and eccentricities; he thus sees the necessity to create a civil society ordered by a
sovereign. 3 The primary aim is to avoid anarchy and chaos where life is nasty, short and brutish, 4
while upholding rule of law and checks and balances.
According to Salmond, a right is an interest, respect for which is the duty, and the disregard of
which is a wrong.
5 In Uwaifo v Attorney General, Bendel State, Supreme Court stated that
right is
“… in the strict sense, when the law limits the liberty of
others on my behalf; liberty when the law allows my
will a sphere of unrestrained activity; power when the
law actively assists me in making my will effective;
immunity when the law denies to others a particular
power over me…In the narrow sense, an immunity is
that which other persons cannot do effectively in
respect of me.” 6
Some of the rights include but not limited to:
2.1 RIGHT TO HUMAN DIGNITY
This right is the most intrinsic, perhaps due to the fact that humans are created in imago Dei
(image of God). This appears somewhat absolute in that every human person has this right
ascribed to him/her: whether imprisoned, physically challenged, ordinary citizen or among the
elites. Universal Declaration of Human Right (hereafter referred to as UDHR) provides that “all
human beings are born free and equal in dignity and rights.” 7 ACHPR provides that every
individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. S. 34 (1) of CFRN states: “every individual is entitled to respect the dignity of his person, and accordingly-
(a) No person shall be subjected to torture or to inhuman or degrading treatment;
(b) No person shall be held in slavery or servitude; and
(c) No person shall be required to perform forced or compulsory labour.”9
It has been noted that forced or compulsory labour in the above section does not include labour as a result of court sentence, or as required by armed forces training, or community service.10 But even where there is court sentence or imprisonment with labour, the prisoner is not stripped of his inherent dignity.
2.2 RIGHT TO LIFE
This is the most basic of all rights in that all other rights only accrues to a living person, although there are some rights like the will of the dead that can still be maintained at death. Universal Declaration of Human Rights provides that everyone has the right to life, liberty and security of person. 11International Covenant on Civil and Political Rights provides that every human being has an inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 12Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedom of 1950 provides that “everyone’s life shall be protected by law.” 13African Charter on Human and Peoples’ Rights provides that “every human being shall be entitled to respect for life and the integrity of his person.” 14CFRN provides that “every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of the court in respect of a criminal offence of which he has been found guilty.” 15But this execution is not to take place until there is full exploration of rights incidental to this on appeal as noted in Nasiru Bello v Attorney General of Oyo State.16
2.3 RIGHT TO FAIR HEARING
This is one of the natural law requirements. Kayode Eso, JSC in Adigun v AG Oyo State17 stated that even God gave Adam and Eve fair hearing while at the Garden of Eden before meting out any punishment. There are two different but Siamese principles involved here, namely- audi alteram partem (literally interpreted as hearing from the other party) and nemo judex in causa sua (one is not allowed to be a judge in his own case to avoid bias). Section 36 (1) of CFRN states-
in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.18
There are certain elements that could be sift from the above constitutional provision, and they include:
a) The trial has to be within a reasonable time: Remand prisoners are special category of prisoners in that19, though they have not been convicted of any particular crime, their liberty is restricted. What amounts to delay is determined by the facts of each case. In Ozulonye & 11 Ors v The State,20 the appellants were accused of setting a village on fire sometime in 1973 and only arraigned before the court in December 1976. In 1978, that is, two years into the trial the matter was transferred to another court for fresh trial. Judgment was eventually given in April 1980. Court allowed the appeal on the ground of long and circuitous trials and breach of the rights of the appellants
b) The accused may have access to counsel of his choice. Section 36(6)(c) provides for the right of the accused to either defend himself in person or via a legal practitioner of his choice. In Josiah v The State,21 Oputa JSC re-emphasized the inactive role of the judge during trials in the adversarial system we have adopted. Therefore, a counsel is allowed to speak on behalf of the accused party, of course with the permission of the presiding judge.
c) Apposite to the above is the presumption of innocence until his guilt is established. This is well spelt out in section 36(5) of CFRN. And according to the Evidence Act, in criminal matters the burden of establishing guilt is on the prosecution and the required standard is proof beyond reasonable doubt.22
d) The trial must be in public. Public here connotes accessibility to the public and not necessarily the physical venue. However, there are situations where court may decide in the interest of the person involved, especially minors or public morality or similar reasons to allow the trial not to be in the public.
e) The trial has to be by a court. In fact, it is the court that hears criminal matters in exclusion of administrative bodies or disciplinary committees. In Military Governor of Imo State v Nwauwa,23 Supreme Court held that it is well settled that once a person is accused of the commission of criminal offence, he must only be tried by a court of law established under the constitution where the complaints of his prosecution can be ventilated in public in accordance with the law and where his constitutional right of fair hearing would be assured. No other tribunal, investigative panel or committee will do it.
f) The accused also has right to bail. The combined reading of s.35(1) and 36 provide that accused person not tried and convicted is entitled to be granted bail save there are special circumstances that prevent the court from doing so.24 In the locus classicus, Onu Obekpa v State,25 court held that bail is a constitutional privilege which he is entitled to under the constitution.
2.4 RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
Constantine in the 4th century championed freedom religion. This right is not extricated from prisoners, whether tried or convicted. Section 38 of CFRN states “Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”26 One is even free to join associations, whether political or religious, perhaps in the bid to actualize his inner cravings. Section 40 of CFRN also provides for right to freedom of association.
2.5 RIGHT NOT TO BE ABUSED
Right of freedom from various forms of abuse is predicated on the dignity of human person, whether in prison or free citizen. Such abuses may include but not limited to torture, maltreatment and abuses that are sexual in nature. Section 29(5) of Evidence Act defines oppression to include torture, inhuman or degrading treatment, and the use or threat of violence. In Banjo v State,27 the appellant made confessions after he was suspended in the air with hangers by his interrogators, who beat him with sticks, cutlass and were urging him to confess to the crime. It was held that the confession was as a result of torture and inadmissible.
In fact, Article 1 of Anti-Torture Act 2017 imposes an obligation on the government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that non of such people is subjected to any form of physical or mental torture. The Act went even further to criminalize such torture. Similarly, the Administration of Criminal Justice Law of Lagos State, 2011 places caveat with regard to how information is extracted from the suspect. This has been tested in the case of Tijani Tajudeen v The State.28
3.0 TO WHAT EXTENT HAS PRISONERS’ RIGHTS BEEN UPHELD IN NIGERIA?
Any critical appraisal here will reveal giant strides in NCS Act in trying to imitate international provisions in order to better the lot of Nigerian prisoners. It also seeks to preserve their human dignity while noting that the essence of prison is not just for punishment, but for re-orientation and rehabilitation before reintegration into the society. However, gaps still exist when it is compared with the international standards set by the United Nations, or even putting into real practice what we have in the present Act.
For instance, there are still old structures that are not in conformity with the specifications of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 1955. In other words, appearance is far different from reality. It is true that section 9(1)(b) provides that there should be accommodation for inmates conforming to international specifications, yet there is no explicit provision from the Act directing either federal or state government to restructure the old custodial centres or build new ones. Consequently, many of the correctional centres still look like poultry farm with few apartments looking modernized only for the rich inmates who can afford it.
Another gap yearning for a fill up is section 12(8) that provides for the power of the State Comptroller to reject intake of extra inmates when it exceeds its capacity. Unfortunately, there is no alternative provision as to where such people are to be kept. It is for this reason that most of the custodial centres across the country are over populated. It is crystal clear on any visit to them that humans are packed full in the rooms with little or no cross ventilation, and most of them await trial in deplorable and wretched situation. 29
Again, S. 34(4) provides for the prosecution of an officer who impregnates a female inmate. This appears too minimalistic and has not covered the grounds of different sexual harassment and abuses like rape, verbal abuse, improper touching during pat-down searches, spying on inmates during shower and in living areas, homosexual abuses etc30. On the surface, this section may appear prisoners’ friendly, but deep reflection will reveal that it is a kind of cajole on them. Waiting till pregnancy results is a subtle way of using law to shield the wild behaviours of some staff members who may actually be worse than the inmates or just taking advantage of them due to the laxity of law.
Similarly, section 34(6) provides for a nursing mother to stay for eighteen months with the mother before separation. The baby is to leave the custody, perhaps to the family to take care of him/her. This actually sounds appalling as babies of such age would still definitely need maternal care.
It is quite disturbing that while perusing through the 47 sections and 2 schedules of NCS Act that there is no provision for the source of funding for structures and other concerns. This will obviously make it logistically cumbersome to make the new Act effective.
4.0 CONCLUSION
It is quite interesting on how the world has shifted attention from treating prison inmates as criminals to upholding their rights, discovering the root of their problems, curing their malady before reintegrating them into the society, save those meant to spend the rest of their lives in custody. States across the globe have joined in this right perception, bearing in mind that the hitherto tested approach did not yield much positive fruits. Nigeria has joined the wagon with the signing into law of Correctional Service Act in 2019, but there is a call here to review and upgrade the legislation in the light of the standard created by the United Nations and practiced in most advanced countries.
3
- 1.United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 30th August, 1955, Rule 1
2. Ibid.
3. Oludayo G. Amokaye, Planning and Compulsory Acquisition Law and Practice in Nigeria, (Concept Publications Limited: Lagos, 2016), p.96.
4. T. Hobbes, Leviathan (1651) pt. 1, ch. 13 available at http://www.oxfordreference.com> accessed on May 1, 2024.
5. Kehinde M. Mowoe, Constitutional Law in Nigeria (Malthouse Press Ltd: Lagos, 2008), p. 270
6. (1983) 54 NCLR, 1 SCN; 46, 235, 270, 524
7. Universal Declaration on Human Rights, Article 1.
8. African Charter on Human and People’s Rights, Article 5.
9. Constitution of the Federal Republic of Nigeria
10. Ese Malami, The Nigerian Constitutional Law, (Princeton Publishing Company: Lagos, 2012), pp 286-287.
11. art. 5 Universal Declaration on Human Rights.
12. a t. 6 International Covenant on Civil and Political Rights was adopted by UNGA on 19th December, 1966.
13. European Convention for the Protection of Human Rights and Fundamental Freedom of 1950
14 .art. 4 African Charter on Human and Peoples’ Rights.
15. s. 33 (1) of Constitution of the Federal Republic of Nigeria.
16. (1986) 5 NWLR (Part 828) 293.
17. (1987) 2 NWLR (Part 56) 197.
18. Constitution of the Federal Republic of Nigeria
19. Agbaedo, supra at 153
20. (1982) 2 P.L.R 3
21. (1985) 16 NSCC (Part 1) 132.
22. The Evidence Act, 2011 s. 138
23. (1993) 2 NWLR (Part 490) 625
24. Agbaedo, supra at 158
25. (1981) 2 N.C.L.R. 420
26. Constitution of the Federal Republic of Nigeria
27. (1983) ALL N.L.R. 30
28. (2022) LPELR- 58173 (CA)
29. Agbaedo, supra at 171
30. “International Best Practices in Custodial Sentences,” 119 ↩︎
