COVID 19, Inmates and Petty Offences in Nigeria
By Ogechi Ogu
It is common knowledge that the world is undergoing difficult times today owing to the current pandemic- coronavirus. Individuals and communities are overwhelmed by the exponential rise in cases of infected persons and most especially in the number of deaths recorded.
Though Nigeria has currently a record of confirmed 22 cases of the Covid 19 and no death (16 cases in Lagos, 3 in the FCT, 1 in Ekiti and 2 in Ogun state) as at 21/3/2020 , we still have serious cause for concern given that in the short period of the outbreak of the infection globally some 276,600 cases have been confirmed with 11,419 deaths recorded and 91,954 recovered .
Everyone and every able society is rising up to the very first law of nature- the duty of self preservation.
The question is, are all persons and communities able to protect themselves or in the least help themselves? The answer is No!
There are several persons who as a result of their status and particular circumstances at the moment cannot help themselves in the face of the devastating pandemic.
Among the vulnerable groups are persons in detention. Prison reform experts are of the view that those in jail are at a higher risk of catching and passing on the virus due to a lack of hygiene in crowded cells. It is more difficult for arrested and handcuffed persons who cannot cover their mouths when they cough or sneeze.
Availability of soaps and hand sanitizers is also a big issue. Sanitizers may also fall in the category of items that are contraband because of its alcohol content and combustible nature.
Truth remains that detention for infraction of one penal law or the other should not be a death sentence and even where death sentence is pronounced by a court in Nigeria, the medium of execution is not by an infectious disease or diseases.
Persons in detention are still entitled to other human rights notwithstanding the fact that freedom of movement has been taken away from them. More so a high percentage of persons in Nigerian Custodial centers and other detention facilities today are still awaiting trial and are fully protected by the constitutional provision on a suspect being innocent until proven guilty.
It is therefore our collective responsibility to protect these persons. No matter what the situation is, their human rights still do count and our duty is to monitor and ensure that these rights especially the right to life is protected.
Social distancing is highly recommended for all, I do not know how much of this is practicable in some Nigerian detention facilities. It is on record that most of these facilities intern persons beyond their capacity.
There lies the big challenge, in the likelihood of an inmate catching this virus, we then know we have a major crisis at hand. The virus of course would spread like wildfire and both the innocent, the guilty, the sentenced, awaiting trial, the serious offender and the minor offender would pay the ultimate price for finding themselves at the detention facilities in this trying times.
What then should be done? The Nigerian Correctional Service has indicated taking several preventive measures to prevent Covid 19 outbreak. These measures are yet to be made public.
However, there is rising call for the release of persons in Custodial Centers as currently implemented in some highly infected nations of the world today.
However, whilst Nigeria may argue that the pandemic has not reached that level of sending away Custodial inmates, there are several other steps that can be taken in the interim as the government watches the development of things.
PETTY OFFENDERS SHOULD NOT BE FOUND IN DETENTION FACILITIES.
All the 36 states and the Federal Capital Territory should quickly collate data on Petty offenders and ensure that such persons are released from Custodial centers immediately.
We already have in place the legal basis for this. Part 44 and 45 of the Administration of Criminal Justice Act (2015)and Part 2 of the Nigerian Correctional Service Act (2019) already make provisions for the utilization of Non-Custodial measures for Petty/ minor Offences.
The Minor Offences (Miscellaneous Provisions) Act (2004) has also abolished some minor/ Petty Offences, though these Offences are still in our statute books such as the Criminal Code Act/Criminal Code Laws of states in Southern Nigeria and Penal Code Act/Penal Code Laws of the states in Northern Nigeria. The implication of this and our current reality is that many persons are still arrested by Security agencies for infraction of these laws and often these persons are detained in Custodial facilities. This is so even when existing laws on non-Custodial measures recommend otherwise. Detention should not be for this class of offenders and can only be used as a measure of last resort.
It would then be man’s inhumanity to man for anyone to be found in Custodial Center today just for Petty Offences such as loitering, wandering, being a vagabond, failure to pay debt , hawking and street trading ,prostitution and playing a game of card.
At this moment of high risk of the Covid 19 virus detaining such offenders would amount to killing a fly with a sledgehammer and we should totally avoid this as a nation.
Petty offenders should in the least enjoy the provisions the Administration of Criminal Justice Act (2015) and the Nigerian Correctional Service Act (2019) on non-Custodial measures.
We must also consider the social and economic circumstances of these offenders and particularly the fact that these are usually poor persons engaging in life sustaining activities which our laws have criminalized.
It would amount to double jeopardy for these persons to pay the ultimate price for seeking a means of survival.
The best we can do at this time is to look into the processes in place and existing laws on non custodial measures and take steps to implement the provisions of those laws in relation to persons charged with petty offences found in Custodial centers while mechanisms are put in place to fast-track existing processes of amendment and removal of Petty Offences from these laws and other state laws which criminalize these activities that are tagged minor/Petty Offences.
By doing so, we serve two ends, we ensure access to justice for these persons and this can also serve as a means of decongesting custodial centers which are mostly filled above their capacity.
The security agencies should be encouraged to use less of arrest and detention before investigations to reduce inflow into detention facilities.
Judges and magistrates should also consider engaging in emergency hearings for Petty offenders in the absence of the inmates (to ensure no physical contact) and armed with their details to ensure many are quickly released.
Other general measures that can be taken include releasing the aged, terminally ill prisoners and maybe pregnant inmates. This should be happening alongside complete ban on prison visits and putting measures in place for electronic communication between inmates and family and ensuring provision of and easy access to sanitary needs of inmates as well as improved diet with fruits and vegetables for them.
Our criminal justice system must creatively and consciously commit to the safety and survival of persons in conflict with the law as we collectively look forward to overcoming this global tragedy.
PRAWA is Non-Governmental Organisation working on Reform and Capacity Building for Security and Justice Institutions in Nigeria.