Joseph Otteh is Convener, Access to Justice, A2Justice. In this interview with Law and Human Rights, he x-rays some of the challenges facing the justice sector and proffers solutions on how to tackle them. He also spoke on other issues including misuse of cybercrime law by law enforcement agencies, prisons congestion, IGP’s tenure elongation amongst others.
While cybercrime laws are necessary to protect people online, their implementation by law enforcement has raised serious human rights concerns. What is your view on the issue?
Yes, the misuse of the Cybercrime Act is troubling, but anyone who knows our governance system a bit would know that no gift of prophesy was needed to announce that the Cybercrime Act would be repeatedly abused. And it is somewhat obfuscating that the legislature would pass the 2015 version of the Act the way it did, because the risks of misuse were writ large on the Bill. But anyway, the Act has served “power” very well, given that it’s often put to illicit ends, to side with power and silence or politically repress people who speak uncomfortable truths to power.
The amendment to the Act in 2024 was a good intervention. It showed, at the very least that the legislature were observing how the Act was being misused, but its amendment of the Act did not go far enough and did not determine the legislation of all the dangers lurking within its language. The current version of the Act still contains quite a bit of loose verbiage too, and can still be weaponized to clamp down on free speech. Perhaps the legislature should further review the Act again to tighten the spaces available for its illegitimate use. But legislative review, while welcome, is not guaranteed.
It is the judiciary that must step in now to protect the constitutional right to free expression. Early indications that the Judiciary will rise to the occasion and safeguard free speech soon enough are not looking good at this time. A case decided first by the High Court and ratified by the Court of Appeal based on the 2015 Cybercrime Act held that its Sec. 24 (which was the subject of the 2024 amendment) was not incompatible with the constitutional right to freedom of expression. It is of concern that it was the legislature, not the Judiciary that recognised the dangers to constitutional liberty of leaving the Act in its original form, and amended it.
Law enforcement agencies have been accused of using vague provisions in Cybercrime laws to target journalists, activists, and opposition voices. There have also been cases where people were arrested for social media posts or online criticism of the government or officials. What do you think can be done to tackle these issues?
This is so because the Act plays into the hands of power. And not only in this clime; it is the tendency seen in weak democracies across board. Unfortunately, the Act does not enshrine pre-emptory safeguards, like requiring a Court order before a prosecution is initiated. Law enforcement agencies also cannot be trusted to sanction, in a consistent manner, its officers who misuse the law for personal gain, which would have curtailed a level of impunity seen in the enforcement of the law. It’s not only the Cybercrime Act that is misused. We recently saw how the Terrorism Act too is used against under-aged persons who were out to demonstrate against harsh living conditions
In constitutional democracies, the judiciary will often represent the best hope for safeguarding constitutional rights. Nigeria’s Judiciary used to play that role creditably, or at least was making steady progress towards doing so, but we’ve seen some regression on that curve lately. We can only look for the courage to remain hopeful, that one day, our Judiciary can find its voice and strength again, and find its way to re-becoming authentic guardians of the Constitution and a bulwark against tyranny.
Recently the NJC sanctioned some judges for various judicial misconducts. Do you think these sanctions are enough to discourage corruption in the Bench? Would you recommend stiffer sanctions?
The NJC, particularly under the last three or so judicial administrations, has played fast and loose with the business of ensuring the integrity of Nigeria’s judiciary, and done so unashamedly. The poor and oftentimes vilified state of Nigeria’s Judiciary is partly a reflection of the NJC as well as a massive indictment of its own rectitude, and I do not think that a Council which has taken many questionable decisions in recent past, including reinstating Judges adjudged to be corrupt, comes across to many people at this time as a body they can invest their trust in, and this is unfortunate. I believe the NJC is now simply bumping along the bottom, not caring whether the public has any confidence in it or not.
The NJC needs a complete makeover. Before it exercises authority to sit in judgment over others, it needs to purge itself first of the “logs in its eyes” as it were. Someone once said that “no system of justice can rise above the ethics of those who administer it”. How true!!. In this context, it makes little meaning to talk about Judges who were sanctioned by the NJC recently. There is so much that has gone wrong with our Judiciary, and people have said that if the structure of our judicial system is not overhauled, including the structure of the NJC itself, and if the NJC and its members do not heed what they themselves preach, the system will continue to malfunction, and Judges will continue to malfunction.
A few years ago, you criticised the appointment process of justices to the Court of Appeal, calling for the cancellation of the selection exercise due to its lack of transparency and merit. What danger does such practice portend for the justice system in the country? What would you recommend as the right selection process?
Our judicial recruitment and elevation system is also a victim of NJC’s lack of forthrightness. Judicial appointments ought to be transparent and on merit, at least so says NJC’s own Judicial Appointment Guidelines. In practice, we see a lot of vested interests come to play in judicial appointments and a lot of what someone has aptly described as “insider trading”; children and nieces and nephews and even paramours of such and such get selected over persons of higher merit. To the extent that even the Judiciary began to circumvent and contravene Federal Character provisions in the Constitution, just to push up their preferred candidates. The NJC was not simply condoning the infractions. Oh no. Those at the very top were the ones instigating, facilitating and orchestrating them.
Now, if the NJC is the stamping ground for all sorts of horse trading over judicial appointments, what moral right does it have to restrain 36 Judicial Service Commissions, one Judicial Service Committee and one Federal Judicial Service Commission from practicing the same “insider trading” and nepotism, and opaqueness when they are recruiting candidates at their levels? None, it seems to me. So, the damage that the NJC does, even with respect to the standards and Guidelines it has itself set, has a huge bandwagon effect across the entire judiciary.
Overcrowding, lack of basic amenities, and long pre-trial detentions remain the major problems with Nigeria’s prison system. Do you think that a decentralized prison system to allow for state ownership can solve the problem?
It may be that decentralizing prisons – or better still, having states establish and control prisons – will help reduce the problem of over-congestion. But this is predicated on the assumption that states will better manage criminal justice procedures that lead to arrests, and manage the incidence of abuses and arbitrariness that sustain the revolving doors of over-congestion. At this time, LEAs, particularly the police, systematically undermine efforts to reduce the remand or awaiting trial numbers of Correctional centres. Many people who ought not even be arrested in the first place, are in prison, because our criminal justice system has quite a few points where it leaks and safeguards do not work as they should.
What is your view on restorative justice and how do you think it should be applied to make justice more effective and humane?
Restorative justice has always been a core element and goal of our indigenous philosophy of criminal justice and it is a good thing that we are gravitating towards it again. It might take some time for people to get used to its application in civil and criminal contexts, but we will, I believe, come to see that it works much better for us.
What is your view on the debate over legal and moral issues with the elongation of the tenure of the Inspector-General of Police?
I simply do not understand how two national legislative houses passed an Act just to extend the tenure of a public official. It seems like we have this infinite capacity to “bow and scrape” in efforts to gratify certain sentiments. It’s a bad precedent on term limits and could take us down very problematic slippery roads.
It was recently revealed that between 2017 and 2024, the Federal Government concluded 1,743 terrorism-related trials, securing 742 convictions (42.6%) and losing 888 cases (51%). What do you think could be responsible for this poor conviction record and how can it be addressed?
I don’t think the conviction rates are poor within the context of the challenges Nigeria faces: from the overall data, there is more cause to worry about the uncommon pace at which convictions were secured and what the implications might be for the fairness and integrity of those trials. Part of the concerns relate to the lack of full disclosure about the trials – how many courts were involved in the trials, how many defendants did each court try; how many defendants had access to legal counsel with appropriate levels of competence and experience related to the severity of the charges, etc.
We say this because the information offered by the authorities about the conviction data is discrete and selective: it can possibly set off alarm bells implicating the observance of due process safeguards. In July 2024 alone, it was reported that “a total of 253 cases were disposed of, out of which 125 were convicted.”
Criminal litigation lawyers know that, even with very reasonable efforts, it takes multiple years to complete a criminal trial, let alone one that carries the death penalty. So how do we get 125 convictions in one month? Or even in six months? And then they say that the convictions include International Criminal Court criminalities. Who exactly has been convicted for ICC crimes? For which crimes exactly? Why are their identities not revealed? The ICC has demanded the prosecution of senior military commanders implicated in crimes against humanity, some of who ordered the brutal killing of hundreds of people, including children and mothers in Kaduna State and elsewhere?
Why are the principal culprits still enjoying immunity for their impunity? Many people will interpret the inclusion of this category of convicts as a red-herring, to deflect pressure from the ICC to prosecute the real culprits, and not as a bonafide effort to hold implicated persons accountable for egregious crimes. This unduly politicizes and undermines what ought to have been a genuine and transparent effort to bring abusers to justice.
By Henry Ojelu @TheVanguard
