AFRICAN HUMAN RIGHTS LAW JOURNAL
(2013) 13 AHRLJ 481-487

Recent Publications

Ernest Ojukwu et al Handbook on Prison Pre-trial
Detainee Law Clinic

Network of University Legal Aid Institutions (2012) 225 pages

Stanley Ibe
Associate Legal Officer, Africa Programme, Open Society Justice Initiative, Abuja, Nigeria

1  Introduction

The clinical legal education movement in Nigeria owes its formal origins to an exchange visit sponsored by the British Council to understudy clinical legal education in South Africa. Professor Ernest Ojukwu, then deputy director-general of the Nigerian Law School, led a team of academics on that exchange visit. The seed sowed on that trip grew and took on a life of its own by June 2003 when an expanded team  of  academics attended the  first  All-Africa Clinical Legal Education Colloquium in Durban, South Africa. On their return, Professor Ojukwu and his colleagues co-founded the Network of University Legal Aid Institutions (NULAI Nigeria), modelled after the Association of University Legal Aid Institutions (AULAI).
Since its registration in October 2003, NULAI Nigeria has led the clinical movement in Nigeria and, over the last three years, in West Africa. It has supported the establishment of new clinics, trained faculties, facilitated exchange visits, organised client-counselling competitions and provided peer learning for other law clinics and law clinic associations around the world.
NULAI’s pioneer clinics were generalist in orientation. This is understandable given the resources – financial and other – required for establishing specialist law clinics, particularly for a nascent clinical movement. In the last five years, however, law clinics have begun the move towards specialisation so that today there are law clinics specialising in women’s human rights, criminal justice and mediation, amongst other areas.

With specialisation comes the need for resources to guide students and their teachers. Although NULAI has a standard curriculum for learning in all its affiliate clinics, it had yet to venture into publishing for its specialist clinics. Its new Handbook on Prison Pre-trial Detainee Law Clinic (Handbook) is therefore a welcome addition to the literature on law clinics and clearly a first on specialist law clinics in Nigeria.
This review takes a critical look at the Handbook – identifying good points, revealing missing fundamentals and offering ideas on how to improve output.

2  Overview of the Handbook

The handbook brings together ten chapters, an index and a page about the authors. It opens with a two-page chapter which sets out the objectives and scope of the Prison Pre-Trial Law Clinic. This extremely  short  chapter  misses  an  opportunity  to  introduce  the subject to a new reader in a compelling manner. It neither describes what clinical legal education is nor what role law clinics play in this relatively new form of legal education. Pre-trial law clinics suffer the same fate.
In addition, the Handbook appears to use ‘prison pre-trial detainee law clinic’ and ‘prison pre-trial law clinic’ interchangeably. It is not clear if this is the intention of the authors. The lack of clarity about the authors’ choice of words also extends to the title of the Handbook where ‘prison pre-trial detainee law clinic’ is used. Perhaps an explanation in the opening chapter or a glossary of terms at the end of the text could have dealt with this. I can only surmise that the authors may have determined to focus on pre-trial detainees held in prisons. This is crucial because police and other detention facilities hold pre-trial detainees.
The preface responds to the question of what the text is about but not why it is necessary or why focus on pre-trial detention. There is no attempt to review any literature or say that none on the subject matter exists. The ‘how to use’ this Handbook is seemingly implicit in the suggestion that ‘teachers and students will find this handbook (as
well as the Manual on Prison Pre-trial Law Clinic1 that supports it) very
useful’. I can surmise that the Manual and Handbook will be used
together.
Chapter  two  usefully  discusses  the  criminal  justice  system  to provide a fitting background to the subject of pre-trial detention. It opens with a set of three ‘outcomes’2 Handbook users should expect,

1	E Ojukwu & O Lagi Manual on Pre-trial Detainee Law Clinic (2012).
2	The outcomes read like questions at the end of the chapter, eg, discuss and explain the nature, scope and concept of the Nigerian criminal justice system. E Ojukwu et al Handbook on Prison Pre-trial Detainee Law Clinic (2012) 3.

but does not follow the format of chapter one in that it fails to address objectives.3
The first of the outcomes, which relates to the nature, scope and concept of Nigeria’s criminal justice system, forms the basis of discussion under 2.2. Curiously, only the last of eight paragraphs4
actually attempts to describe criminal justice in the context of Nigeria. The prior seven paragraphs engage conceptual clarifications of terms such as ‘system’, ‘justice sector’ and ‘criminal justice’.
The second outcome addresses institutions involved in the criminal justice system. Section 2.3 identifies the police and other law enforcement agencies, the judiciary and the prisons service. For some unexplained reason, it fails to include prosecutions, which is often a shared function between the police in lower magistrate courts and the Department of Public Prosecutions – a department of the Attorney-
General’s office in Abuja and the 36 states of Nigeria.5
Chapter three is a fairly elaborate 56-page section, introducing the procedure for instituting criminal proceedings. The length of this chapter  is  indicative  of  the  complexity  of  the  subject  given  the
different competing legal traditions in Nigeria.6
The  chapter  impressively  identifies  and  discusses  the  stages involved in prosecuting a crime in Nigeria, taking care to distinguish what  is  required  in  Northern  Nigeria  from  what  is  required  in Southern Nigeria. There is, however, a controversial statement on page 61 suggesting that ‘[g]one are the days when a magistrate acting upon an application for remand by the police merely orders a
remand’. In the context of Lagos state, those days are certainly gone,7
but this is not exactly the case with the other 35 states and the federal capital territory, Abuja.8
Chapter four provides an overview of the human rights of prisoners/pre-trial detainees in Nigeria. It is rather superfluous to include ‘human’ in a topic on rights relating to prisoners. Prisoners are clearly human.

3	There is a general lack of uniformity in the structure of the Handbook. Eg, chapters three and four end with a ‘conclusion’; others do not.
4	6.
5	Interestingly, sec 2.3.14 titled ‘Ministry of justice, attorney-general and director of public prosecutions’ describes the ministry of justice as ‘an organ of the government established to prosecute and defend matters on behalf of the government’. See 19.
6	Eg, there is a federal Criminal Procedure Act and states Criminal Procedure Laws applicable to Southern Nigeria. The Criminal Procedure Code applies to Northern Nigeria as well as the Federal Capital Territory, Abuja. While states like Lagos have Administration of Criminal Justice Law in addition.
7	The  Administration of  Criminal  Justice  Law  of  Lagos  State,  2007  provides  a maximum of 60 days for detainees to be returned to court for trial.
8	There are no concurrent laws in the other states. Rather, most states still maintain remand laws that ostensibly allow magistrates without trial jurisdiction to remand criminal suspects, often indefinitely.

The chapter provides a set of definitions for terms such as ‘prisoner’ and ‘pre-trial detainee’. This is remarkable given that these terms have been used throughout the Handbook with concrete descriptions. The
choice of Black’s Law dictionary9 as a source for the definition of ‘pre-
trial detainee’ is rather unfortunate in that it is not context specific.10
Under section 4.5, dealing with the entitlement of prisoners/pre- trial detainees to human rights, there is a reference to the right of
‘everyone to take part in the government of his or her country directly or through freely-chosen representatives’.11 The authors do not express an opinion as to whether this right exists in practice or is
restricted in Nigeria. The correct position is that there is no law restricting prisoners from voting during elections although they have never enjoyed this right.12
Chapter five opens with a rather discriminatory description of the term ‘access to justice’, namely, ‘the substantive and procedural mechanisms designed to ensure that the citizens have opportunity of
seeking redress for the violation of their legal rights’.13 I am unable to
agree with the idea that access to justice is restricted to citizens. It
ought to be available to everyone within the jurisdiction of Nigeria.
Beyond this, the chapter acquits itself well on this interesting topic by
identifying challenges to access to justice and discussing the operation
of legal aid. The chapter also makes concrete proposals for enhancing
access to justice.
Chapter six makes a useful contribution in that it addresses a question that should have been addressed earlier in this Handbook, namely, what is the role of law clinics in prisons. It chooses a two- pronged approach to this – the problem(s) clinics are designed to solve and the objectives for which they exist. The authors rightly suggest that law clinics are designed to supplement existing legal aid and assistance programmes, amongst other objectives. However, they also  conclude  that  interventions  made  by  existing  legal  aid  and
assistance programmes ‘have made no impact at all’.14 This is rather
unfortunate given that it is not supported by any empirical evidence.
Nonetheless, it raises interesting questions about not just existing
legal aid interventions but also access to legal aid.

9	89.
10	Blacks defines a pre-rial detainee as a ‘defendant who is held before trial on criminal charges either  because the  established bail  could  not  be  posted or because the release was denied’. In Nigeria, there are other circumstances in which a suspect can await uncertain trial, eg where a court of competent jurisdiction has yet to determine the charge against the suspect.
11	91.
12    Dr  Chidi  Odinkalu,  Chairperson  of  the  National  Human  Rights  Commission, recently canvassed this position arguing, as I do, that there is no legal restriction on the right of prisoners to vote. See I Chiedozie ‘NHRC advocates voting rights for  prisoners’  Punch  http://www.punchng.com/news/nhrc-advocates-voting- rights-for-prisoners/ (accessed 9 August 2013).

I think that access to legal aid is less than optimal. This is clearly due to more structural problems, namely, the low lawyer-to- population ratio,15 coupled with the penchant for the legal profession
to be uncomfortable with paralegal services provision, particularly if non-lawyers  offer  this  service.  The  chapter  does  not  provide  a balanced debate on this subject, but it does say something about the
activities of pre-trial detention clinics.16
Chapter  seven  offers  an  interesting  diet  on  professional responsibility and ethics. It raises and adequately responds to an interesting question about the applicability of the Rules of Professional
Conduct17 to law students. On the subject of ethical issues relating to
prison work, the authors seem to suggest that there are seven principles from which the code of ethics are derived,18 but list and discuss only six.19
Chapters  eight  and  nine  discuss  interrelated  subjects  of interviewing and counselling as well as report and opinion writing. The former extracts useful tips from a highly-regarded handbook for
professional legal training20  on the functions and golden rules for
interviews, while the latter presents concise but rich guidelines for
writing a report and an opinion.
The concluding chapter of this Handbook focuses on file management from the perspective of a law office or clinic.

3  Critique of the Handbook

The authors appear to assume that the audience is knowledgeable about the topic and therefore make little or no effort to provide a background or explain certain concepts. For example, there is a reference  to  the  Criminal  Procedure  Act  and  Criminal  Procedure
(Northern States) Act in the context of power of arrest21 without an
effort, even if by footnote, to explain why there are two legislations on
the same subject in the same country. In the same passage, there are
references  to  ‘indictable’  and  ‘non-indictable’ offences  as  well  as
‘arrest with warrant’ and ‘arrest without warrant’. To find answers to

15	Nigeria currently has nearly 100 000 lawyers to a population of 150 million – a ratio of 1:1 500.
16	157-169.
17	Rules   of   professional   conduct   for   legal   practitioners   (2007)   http://www. afrilegstud.com/calsreview/PDF/professional_conduct.pdf (accessed 23 August
2013).
18	181.
19	Dignity/integrity at work, confidentiality, legal requirements, conflict of interest, dilemmas, and competence/diligence. See 181 for the list and 182-192 for the discussion.
20	Professional legal training handbook of the Faculty of Law Clinic, University of Durban-Westville, South Africa, referenced on 200. University of Durban-Westville is now a campus of the University of KwaZulu-Natal.
21	8.

the first two terms, the reader has to move to pages 4622 and 48.23
There is, however, no answer provided in the text for circumstances
under which one may be arrested with a warrant as distinct from an
arrest without a warrant. Perhaps the authors expect that readers
would have gone through a course of instruction in criminal law or
procedure by the time they use this Handbook.
Similarly, the concept of ‘holding charge’ is first mentioned in the context of what happens when a defendant is before a magistrate’s court for an offence over which the court has no jurisdiction. The
reader is left to wonder what ‘holding charge’ means until page 54.24
The authors also use a number of legalese, including de facto,25 inter  alia,26  locus  standi,27  de  novo,28  cause  list29  and  pre-action notice30 without explaining what these words or phrases mean. Again, this may have been informed by  the assumption that the reader ought to know. These terms would have been usefully explained in a glossary of terms.
There is an attempt to extract usually long commentary from reported cases. While this may have been an exercise in allowing the judges to speak for themselves, it could have been better managed. Clearly, the decision to devote almost two full pages to reporting
verbatim the decision in Munir v Federal Republic of Nigeria31 merits
further scrutiny. The main points of that decision could have been
highlighted and, where necessary, the judge’s statements could have
been quoted with minimal distraction. This is not an isolated case.
There are similar extensive quotations with respect to the cases of Timothy  v  Federal  Republic  of  Nigeria,32  Jimoh  v  Commissioner  of Police,33  Lufadeju  v  Bayo  Johnson34  and  Uwazurike  &  6  Others  v Attorney-General of the Federation.35

22	n 34 cites sec 2 of the Criminal Procedure Act which defines ‘indictable offence’ as
‘any offence which on conviction may be punished by a term of imprisonment
exceeding two years or by imposition of a fine exceeding four hundred naira’.
23    n 38 describes ‘non-indictable’ offence as one ‘which upon conviction may be punished by a term of imprisonment not exceeding two years or by imposition of a fine below four hundred naira’.
24	Sec 3.4.7 is devoted to explaining the subject of ‘holding charge’. For more on the subject, see O Agbakoba & S Ibe Travesty of justice: An advocacy manual against the holding charge (2004).
25	139.
26	63.
27	135.
28	133.
29	134.
30	136.
31	69-71.
32	40-41.
33	56-57.

The information in the book is generally accurate up to the date of publication. There is one notable exception, however, where the authors say that ‘[t]he Ministry of Internal Affairs supervises the Police
Service Commission and the Police’.36 The Presidency supervises the
Police Service Commission,37 while the Ministry of Police Affairs supervises the Nigerian Police Force.38
For readers interested in further exploring the subject of this Handbook, they may have to literally extract the resources used as there is no bibliography. The absence of this tool is a profound missed opportunity.
The  absence of  a  section  or  chapter on  funding law  clinics  is another omission. Funding is one of the more significant challenges law clinics in Africa face, and therefore an undertaking such as the one under review ought to devote some attention to addressing the question of how to fundraise for law clinics.

4  Conclusion

The Handbook is a useful tool for navigating the relatively new idea of pre-trial  law  clinics  in   Nigeria.  It  presents  the  most  relevant information in a reader-friendly fashion. Although there are a number of missing fundamentals, it is still a veritable resource material for those seeking to understand how pre-trial law clinics work in Nigeria.

36	10.
37    The Police Service Commission is established as an executive body of the Federal Republic of Nigeria under sec 153 of the 1999 Constitution and the Police Service Commission (Establishment) Act of 2001. See the website of the Commission, http://www.psc.gov.ng/node/47 (accessed 9 August 2013).
38	The core mandate of the Ministry is to ‘administer the NPF (Nigeria Police Force) in  such  a  manner  that  it  operates  at  the  highest  level  of  professionalism, dedication and discipline to ensure public safety and internal security of the country’. See the website of the Ministry, http://www.policeaffairs.gov.ng/ (accessed 9 August 2013).