This case study seeks to address three specific themes, namely, pre-trial and diversion; trial and sentencing; and children deprived of liberty. The study examines the practical operation of different aspects of the juvenile justice system in Nigeria from pre-trial proceedings to committal. This is embarked upon with a view to determining how far these proceedings are in compliance with international standards, the problems and constraints which may limit compliance and the most likely measures which may be taken to secure compliance.
The study relies on case profiles of juveniles in conflict with the law, interviews with personnel in the system and the personal observations of the author. It is focused primarily on Lagos State, which is one of the most populous cities in Nigeria and is the commercial nerve centre of the country. For a fuller picture, data is also included from a national study which was conducted by the Nigerian Institute of Advanced Legal Studies in 1995 and of which the author was Project Coordinator.
The study addresses such areas as the various categories of children involved with the system of juvenile justice; the socioeconomic characteristics of juvenile offenders; the treatment of juvenile offenders by the police; the structure of the juvenile court; the trial proceedings; the disposition measures commonly resorted to; the legal protections available for children deprived of their liberty; the social welfare services; the institutional facilities available for children deprived of their liberty and their operations; conditions of custody; the funding of the juvenile justice system; the staffing situation, and the extent of NGO participation in the juvenile justice system.
Nigeria is one of the most populous countries in Africa and had a population of 109.4 million in 1995 and is growing at an annual rate of 3% and is expected to double by the year 2017. Almost half the population (45%) is below the age of 16. The country is endowed with a wide variety of natural resources, including vast crude oil reserves, but the economy is overdependent on crude oil production, and the collapse of oil prices in the 1970s had a devastating impact. Nigeria also carries a huge internal and external debt burden, estimated in 1996 at N 1,000 billion (roughly $45 billion). The situation is worsened by the rate of inflation which increased from 45% In 1992 to 73% in 1994, although it dropped to 28% in 1996. Largely due to the decline in oil revenue, physical and socioeconomic structures as well as social services have failed to keep up with the population explosion and rapid urbanization and have deteriorated badly.
Despite a recent improvement in some economic indicators, such as a GDP growth of 5.4% per annum, Nigeria is still one of the poorest countries in the world, with a GNP per capita of $280 in 1994. UNDP reported in 1996 that Nigeria ranked 137 out of a total of 172 countries on the Human Development Index. Seventy percent of Nigerian households are poor, while 40% are "core poor". The effect of this poverty is most apparent in children. The infant mortality rate is 91 per 1,000 live births, while the under-5 mortality rate is 147 per 1,000, one of the highest in the world. Many children are underweight, stunted or wasted, and many homes do not have electricity, running water or access to health services. Only 65% of primary school age children were enrolled in school in 1995, and barely half of those enrolled go on to secondary school. Poverty is responsible for a large number of dropouts as well as of the perceived irrelevance of formal education to immediate and long-term needs. Unemployment figures are somewhat unreliable, but the available data indicate an unemployment rate of 16% among urban based youths between 15-24 years old and a national average rate of 6.7% among this group in 1995.
The unstable political system in Nigeria has further contributed to the doleful economic picture. Nigeria has been under military rule for 27 of its 37 years of independence. This period has been characterized by coups, countercoups and attempted coups and by the various crises attendant upon the forceful transfer of power or the violent suppression of attempts by other groups to compete for power. Laws and policies repressive of human rights and personal freedoms have been enacted, transparency and accountability have vanished, the rule of law has been undermined and social and economic policies have been inconsistent and unsustained.
The Children and Young Persons Act II is the major piece of legislation dealing with matters affecting children and young persons in Nigeria. its stated purpose is "to make provision for the welfare of the young and the treatment of young offenders and for the establishment of juvenile courts." This Act was first enacted in 1943 by the British Colonial Government for application in any part of the Protectorate of Nigeria on the order of the. Governor-in-Council. It was specifically enacted for Lagos in 1946 and was extended to the Eastern and Western Regions of Nigeria in that year. A very similar law was enacted for the Northern Region of the country in 1958. On the introduction of a state structure in the country, Lagos State (in common with many others) enacted its own Children and Young Persons Law (hereinafter referred to as the CPYL) which is almost identical to the 1943 legislation.
Since then Nigeria has become a signatory to the Convention on the Rights of the Child, and in order to comply with the obligations assumed thereunder a Children's Decree which is much more comprehensive in its terms has been drafted to incorporate international standards on the rights of the child and juvenile justice. The draft was sponsored by the Federal Ministry of Women Affairs and Social Development in collaboration with the Federal Ministry of Justice and with the active support of UNICEF. It has not yet been enacted into law and is currently undergoing a cultural compatibility review. Until it is enacted the current law in Lagos State remains the CYPL.
The word "juvenile" is nowhere defined in any piece of legislation in Nigeria. The CYPL defines a "child" to mean a person under the age of 14, while a "young person" is defined as a person who has attained the age of 14 and is under the age of 18. Except in respect of some punishments, there is little practical significance to these distinctions and for ease of reference it is proposed that whenever the word "child" or "juvenile" is used in this presentation, it refers to a person under the age of 18 who may be dealt with under the special provisions of the CYPL.
Under the terms of the CYPL there are three categories of children who may become involved with the system of juvenile justice and these are:
Children in need of care and protection are, generally speaking, those who have been abandoned or left destitute by their parents. Children beyond parental control are brought to the attention of the authorities by their parents. There is no legal definition of this group of children but in many such cases the child is alleged to have engaged in minor criminal activity, usually directed at family members and neighbours, which has not been reported to the police. Truancy and running away from home are also common complaints. Both these categories of children are handled by the juvenile court in the exercise of its civil jurisdiction.
While most juvenile offenders are children who have committed offences under laws which are also applicable to adults, children who play truant may be brought before the juvenile court in the exercise of its criminal jurisdiction Under the CYPL any child of primary or secondary school age who habitually fails to attend class or is found loitering on the streets or is found in any eating or drinking place, shop or public place of entertainment during school hours may be apprehended by the police or any other authorized person, be arraigned before a juvenile court and "if found guilty" be sent to a remand home for a period of not more than three months.
Rather than adopt a single age of criminal responsibility, Nigeria has adopted various age demarcations under which responsibility may or may not be assigned depending on the circumstances or the offence. Thus, a child below the age of 7 is not criminally responsible for any act or omission. A child between the ages of 7-12 will not normally he held responsible for his actions unless it can be proved that at the time of committing the offence he had the capacity to know that he ought not to do it. A male child under the age of 12 is always assumed to be incapable of having carnal knowledge and therefore cannot be held responsible for offences requiring that element. A child above 12 is fully responsible for his actions; however such a child remains subject to criminal proceedings in a juvenile court until the age of 18.
It is difficult to determine the numbers of children involved in the system of juvenile justice in Nigeria. Crime statistics only relate to juvenile offenders and statistics from juvenile detention facilities represent only those children who are deprived of their liberty which is but one of several intervention options available to the courts. Perhaps the most comprehensive data would be that compiled by the courts, but record keeping in the court system is in a shambles and such data are generally not available.
In respect of children in conflict with the law, the juvenile share of total criminality has remained below 10%. (The 1994 Annual Police Report details the arrest of 295 juveniles nationwide in that year, down from 717 cases the previous year.) Most of the offences are male dominated, although hawking is predominantly a female offence. In the Institute study, out of a sample of 351 children in criminal custody 84.3% were male. The sample was limited to children between the ages of 8-17 and more than four-fifths (81.5%) of the respondents were between 14-17. The offences they had been accused of were stealing/burglary (57.3%), assault/fighting (9.7%) wandering/truancy (8%) and murder/manslaughter (4.9%). Other offences included illicit drug use (1.7%), prostitution (0.9%) and rape (0.3%).
Figures indicate that most children in criminal custody come from large families at the lower end of the socioeconomic scale. While these facts would also appear to be true of children in the general population, it is significant that far more of the children in this group lived with both parents than did children in criminal custody before their arrest. Similarly, a larger number of children in the general population were in attendance at school. Those children who had not been in school before their arrest were engaged in occupations such as street or market trading, bus conducting, load carrying, farming, begging, apprenticeship or domestic work. It is noteworthy that many of these activities are defined under the CYPL as being evidence that the child is in need of care and protection. Thus, the commission of offences by these children is indicative of a lack of effective protection of children under the law.
When she was 13 years old "Bisi" was brought to Lagos by a distant relative to seek employment as a domestic help. She found employment with a family where she was responsible for the care of two young children and general household duties. After about a year, her employers suspected her of stealing certain household items and hauled her off to the police station where she denied the allegation. The police beat her with an iron rod and threatened to kill her if she did not confess. After several hours of this she was placed under arrest and locked up in a police cell at 2 a.m. The two adult female inmates of the cell subjected her to the usual initiation rites that new inmates are put through. She was beaten up and forced to fan them until daybreak. They afterwards became quite protective of her.
Bisi remained in police custody for three weeks before her first appearance in the juvenile court where she saw her guardian for the first time since her arrest. The magistrate wanted to grant her bail but her guardian refused to stand surety and she was sent back to police custody. Nobody is really sure why she was immediately remanded to the Girls Remand Home, but the probation officer who was later assigned to the case feels that this was probably due to the inexperience of the lay magistrate who had just been appointed.
Bisi spent another six weeks in police custody before her second court appearance. During this period she was not ill treated but remained confined in the police cell. Her guardian showed no interest in her fate, and, during the entire time she was in custody, Bisi was fed by the other inmates in the cell who shared their food with her.
On her second appearance, the Court remanded Bisi to the Girls Remand Home. She remained in custody there for a further eight months making several court appearances before the case was struck out for want of prosecution. Neither the complainant nor the investigating police officer showed up after the first court appearance.
While the CYPL is silent on the mode and procedure for the arrest of children, the 1979 Constitution prohibits torture and inhuman or degrading treatment and requires that every person must be informed in writing and within 24 hours of the facts and grounds for his arrest. All arrested persons have the right to remain silent until after consultation with a legal practitioner or any other person of their choice and must be brought before a court of law within 24-48 hours of arrest. Any person who is unlawfully arrested or detained may sue for his liberty either through habeas corpus proceedings or by means of a constitutionally based procedure provided under the Fundamental Rights (Enforcement Procedure) Rules.
Most of these constitutional provisions, especially those related to time requirements, have been suspended by military decrees, and Bisi's experience has become fairly typical of children who come into conflict with the law. This is borne out by the Institute study which found that 40% of children in criminal custody stated that their arrest involved the use or threat of physical force while almost 45% stated that they were subjected to various forms of pressure to admit to the offence they were charged with,
The CYPL enjoins the police (subject to certain exceptions) to grant bail to arrested juveniles who cannot immediately be brought before a court, but children commonly spend long periods of time in police custody while the charge is investigated. In the Institute study only one-fifth (21.9%) of the respondents spent less than 24 hours in police custody before their first appearance in court. Almost three-fifths (59.3%) spent from a few days to one month in police custody; 12.6% spent from 1-3 months, while 5.6% spent from 3 months to one year in custody. When social workers become aware of such cases, they intervene to secure the remand of the child to a remand home. Severe understaffing means that social workers are unable to embark on a quest of discovery in the police stations, and they are limited to intervening in those cases which are reported to them.
The police are under no legal obligation to notify parents of the arrest of their children, and 41% of the children in the Institute study stated that they were denied contact with their family and friends while in custody awaiting trial. However, even when parents are contacted they are often of limited assistance to the child because of their ignorance and the trepidation with which contacts with the police are usually viewed. Legal representation is also desirable and might curb some of the excesses of the police but given the socioeconomic background of many of these children this is generally unaffordable. Legal aid is only available in respect of a narrow range of criminal offences.
The Children's Decree proposes the introduction of a right to free legal aid in the hearing and determination of any matter concerning a child and further provides that whenever a child is arrested his parents or guardian should be immediately notified or as soon thereafter as possible. The police are enjoined to consider the issue of release without delay and to handle contacts with the child in such a way as to avoid harm and promote the best interests and well-being of the child. It is further stipulated that detention pending trial should be used only as a measure of last resort and for the shortest possible period of time.
The Children's Decree also provides for the establishment of specialized Children Units in the Nigeria Police Force which should be made up of police officers who are trained specifically to deal with children and matters related to children. Some specialized police units already exist but their members have received no special training and do not demonstrate any particular expertise in handling juvenile offenders.
Specific provision is made for the introduction of pre-trial diversion measures so that in "non-serious" cases the police, prosecutor or any other person dealing with a case involving a child offender may dispose of the case without resorting to formal trial by using other means of settlement including supervision, guidance, restitution and compensation. Police investigation and adjudication before the court are to be measures of last resort. It does appear however that there should be a requirement that the child admit to the offence before diversion measures are adopted. A further measure might also be introduced requiring the police to notify the Social Welfare Department whenever a juvenile is arrested. Social workers could help trace family members, by their presence curb police excesses, assist to monitor the welfare of the child in police custody, participate in the diversion decision and, in those cases where diversion is not considered appropriate, ensure the speedy arraignment of the child before the juvenile court.
The Boys Remand Home Oregun is located in a busy industrial suburb of Lagos. The compound is large and overgrown and the single storey buildings are tucked in a corner of the compound. The facility was constructed as a government office complex in 1976 and was converted to its present use when the old home dating from 1942 was demolished to make way for the construction of a highway.
The Remand How has the capacity for 200 inmates. During a recent week it had 40 inmates on roll (18 criminal cases, 14 beyond parental control and 8 in need of care and protection). Their ages ranged between 9-17. Most of the children are either awaiting trial or have been remanded for the preparation of a social inquiry report. The preparation of the report often takes as long as 6-72 months. The children mix together freely and there is no attempt to segregate the different groups beyond dividing them by age for the purpose of sleeping arrangements.
In the mornings after completing their chores the children attend remedial classes. Some of them have never attended school before this. The two classes for senior and junior boys are run by volunteers from a church group which also supplies books and materials. A graphics class and a barbing class are also run by volunteers and a social club has indicated its intention of introducing tailoring and shoe-making classes. The social club provided the uniforms which the children wear. Instruction in basic hygiene is provided by the Warden.
In the afternoons the children engage in some recreational activities such as table tennis, football, cards and ludo. Prayer meetings are usually held in the evenings. The children sleep in two large dormitories. However, there are very few beds and a sour smell emanates from the dirty foam mattresses stacked in a corner. Apparently some of the children still wet the bed. The Warden is currently engaged in repairing a stack of broken iron bunks and is trying to source new mattresses from the community. He also plans to have a WC installed in each dormitory as the children are locked in at night and currently make do with a bucket.
The premises appear scrupulously clean, and despite the lack of running water the toilets are exemplary. Maintenance appears patchy, and the Warden explains that he relies an assistance from the members of a church group to which he belongs who contribute their time or money to effect repairs. For instance, a plumber from the church recently repaired all the toilets which were blocked and non-functional before the Warden was posted in the Home seven months ago.
Water is fetched from a bore-hole which was sunk by a medical NGO. Medical services are also paid for by the same group which has arranged for the treatment of sick children at a private facility in town. The group has recently indicated its intention to set up a small clinic staffed by a nurse within the promises.
The children eat three times a day on a diet of Nigerian staples, but the nutritional value of the meals is somewhat questionable. The Warden relies on eggs for protein as meat and fish are too easily pilfered by staff. He can keep count of the eggs. The children are not allowed out of the promises except for court appearances. Visits from friends and family are usually allowed once every three weeks but some of the children do not receive visitors.
The Warden is the only trained social worker employed in the Home. An Assistant Warden recently joined the staff, but she has had no formal training in social work. The other staff are support personnel, namely, a storekeeper, nightguard, cook and day caretaker. There is no night caretaker to sleep with the children at night so the warden sleeps on the premises. Ten years ago there were 9 social workers and 23 support staff to cater for about 60 inmates.
A child who has been denied bail by the police or the court is committed to custody in a Remand Home unless he is so "unruly" or "depraved" that it is considered that he cannot be so safely committed, in which case he may be committed to prison. A Remand Home serves primarily as a place of detention for juveniles awaiting trial, although a juvenile offender may also be committed to a remand home after a finding of guilty by a juvenile court. A Remand Home further serves as the centre where a child may be detained after a criminal charge against him has been proved while a social inquiry report is prepared to assist the court in its determination of the. most appropriate form of intervention. Although the CYPL provides that a child may be released on bail while the report is prepared, in practice this rarely happens and the child is invariably remanded to a home. Children in need of care and protection and children beyond parental control are also commonly remanded to the Remand Home while a social inquiry report is prepared.
All the probation officers interviewed were of the view that their investigations would be hampered were the child to remain in the home environment. In their view, the child would remain under the influence of his parents and would not open up to them; they would not be able to obtain a true picture of the home background and circumstances of the offence which might involve parental neglect or instigation, etc. The time taken to prepare the report depends on several factors, including the cooperation of the parents and the child, the availability of resources with which to conduct investigations (probation officers are only given N500 a month for this purpose) and the caseload of the officer. An Investigation Board must also meet to discuss the report of the probation officer and warden of the Remand Home with custody of the child. A combination of all these factors means that it may take an average of 6-12 months for the preparation of the report and during this time the child is in custody. This means that where the final recommendation is for a non-institutional intervention, the child will have already spent several needless months of detention in a non-family environment.
The Rules regulating the operation of remand homes require that inmates be provided with reasonable occupation and recreation but do not specifically require that any vocational or literacy education be provided. The-primary orientation of a remand home is therefore custodial and is often punitive rather than rehabilitative. As the description of the Boys Remand Home details, the perspective of social workers is somewhat different considering the length of time which children spend there, and innovative means have been explored to introduce some educational programmes in the home through the community outreach efforts of the Warden. The perspective of the Warden of the Girls Remand Home is very similar.
The Draft Children's Decree abolishes the concept of remand homes and instead provides that children should be remanded to any of a variety of state accommodation including placement with a family, relative or any suitable person or placement in a community home, voluntary home or registered children's home. Where a child who has attained the age of 15 is charged with (or convicted of) committing a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more, a security requirement may be imposed on the remand of the child. This means that such a child will be placed in a section of a community home in which liberty is restricted. A child of 15 who has a recent history of absconding from state accommodation may also be subject to a security requirement.
Tunde is charged before the Juvenile Court with assault occasioning actual bodily harm. He is out on bail, and this is his third court appearance in as many months. When the case is called the parties file into the court, and Tunde stands in front of the magistrate's table with his parents seated next to him. The magistrate feels uncomfortable with the presence of two other family members and asks them to wait outside. The only other persons present in the court are probation officers, counsel and court personnel. An assessor, an elderly lady, sits with the magistrate. At the last hearing, the complainant, a 17 year old girl, had testified alleging that Tunde bit her in the course of a fight. Today, the complainant will be cross-examined by Tunde's lawyer.
It is immediately apparent that the procedures of a regular court hearing are in place. The language is measured and formal. The pace is slow as the magistrate must record every question and answer in longhand. The attitude of defence counsel is combative and hostile. He keeps on "putting it to" the complainant that she does not clearly recollect this or that event. She appears confounded by the turn of phrase and does not answer. The magistrate has to intervene to rephrase the questions. Men the witness does reply her voice is so low and counsel is standing so far away he cannot hear her answers and has to repeat his questions. The magistrate acts as a megaphone relaying the answers of the witness to counsel. It does not occur to anyone that counsel could leave his table and move closer. The cross-examination proceeds for several hours covering only one or two points of testimony. The prosecution protests that counsel is badgering the witness, and the magistrate hesitantly urges counsel to move along, but to little effect. At one point the line of questioning suggests that the "subject" (as Tunde is referred to throughout the proceedings) is only 12 years old. The magistrate points out that he has not yet assessed the age of the subject who in his opinion looks substantially older than 12 years. The assessor, who had been quietly dozing, shakes herself awake, looks at her watch, gets up and leaves.
Finally, after 2-1/2 hours of cross-examination the magistrate announces that he simply must adjourn the proceedings as he has another 8 cases listed for the day. Defence counsel bulldozes on for another few minutes until the magistrate finally puts his foot down. Both Tunde and the complainant who have been standing throughout the proceedings heave exhausted sighs of relief. The case is adjourned for three weeks, and the parties file dispiritedly out of the court.
Tunde's case is unusual in that he was represented by a lawyer. In the Institute study 73% of the children whose cases had gone to trial were not represented by a lawyer. The main reasons for this were financial inability to secure the services of a lawyer, not knowing who to contact, not believing that the services of a lawyer were necessary and not having parents around to secure the services of a lawyer. The dragging out of the trial is however fairly typical. Bearing in mind the length of time children spend in custody before their first appearance in court, it is obvious that the speedy disposal of juvenile cases is far from being achieved.
Under the CYPL a juvenile court is constituted by a magistrate either sitting alone or with any other person appointed by the Chief Judge of a state. Persons sitting with the magistrate are commonly referred to as assessors and are usually drawn from the community. Many states of the federation do not have permanently constituted juvenile courts. Instead designated magistrate's courts handle juvenile cases on certain days of the week. In such instances the law requires the court to sit either in a different room or building from that in which ordinary sittings are held or on different days or at different times.
Lagos State has two juvenile courts which sit full time, thus enabling at least theoretically a specialization of judicial personnel. The courts are housed in the same premises as social welfare offices rather than in any of the various court complexes and are headed by lay magistrates who may be retired social workers. Beyond a short induction course on appointment, these magistrates have no legal training, and, as evidenced in Tunde's Trial, they are often not able to exert much control over the proceedings and are often unfamiliar with points of procedure. On the other hand in a particular court visited which was manned by a magistrate with legal training and considerable experience on the Bench the magistrate was unaware of the existence of various institutional facilities for children In the state. There thus commonly appears to be a trade-off between legal experience on the one hand and expertise in social work on the other.
The Chief Judge may make rules for regulating the procedure in juvenile courts but until this is done the rules relating to the practice and procedure in the ordinary magistrates courts continue to have effect. In the more than 50 years since the enactment of the CYPL, no special rules of procedure have been made for juvenile courts and this is largely responsible for the formality of the proceedings highlighted.
The Juvenile Court has jurisdiction over all children who are accused of criminal offences except those children who are charged jointly with adults and children who are charged with homicide who may be tried as adults in the ordinary courts. The rules of privacy are generally observed in juvenile proceedings; however the rules do not apply where juveniles are tried in the ordinary courts.
The CYPL contains a somewhat curious provision to the effect that, where, in the course of any proceedings in a court other than a juvenile court, it appears that the person charged is under the age of 18 years, that court, if it thinks it undesirable to adjourn the case, may proceed with the hearing and determination of the case. (The converse is also true, so that, when it is found that a person appearing before a juvenile court is above the age of 18, the juvenile court may proceed with the hearing.) It would however appear that in such cases the court in question is limited to the forms of intervention provided in the CYPL. The provision may have to do with the difficulties which the courts experience in assessing the age of accused persons that is briefly highlighted in Tunde's Trial. Although the registration of births and deaths is compulsory in Nigeria, it is only within the last five years or so that the National Population Commission has embarked on a concerted drive to ensure that the requirement is complied with. Thus, many children do not have birth certificates and sworn declarations of age (which are resorted to as the alternative) are not always reliable. In such cases the court usually embarks on a rough and ready assessment of the child's age by inquiring into the child's school record and recollection of significant events. Only as a last resort and very rarely is medical assessment resorted to. The result is that, especially in the case of older children, there can be a lot of initial confusion as to the appropriate court before which they should be charged.
All juvenile offenders have an automatic right of appeal to the High Court, which may have very little specialization or experience in the handling of juvenile cases. This right is rarely exercised, and in the Institute study it was found that of those juveniles whose cases had gone to trial almost 90% did not appeal against the decision. When asked why, 14% stated that they suffered from financial constraints, 13% were satisfied with the decision, and 12.2% were ignorant of how to appeal or did not appeal because they did not have a lawyer. About 8% stated that they were not allowed to appeal but offered no specifics, while 3.1% did not appeal because their parents were against it.
The Draft Children's Decree attempts to address some of the issues raised and proposes the introduction of a Family Court at two levels to replace the existing arrangement. At the magisterial level the court is to be manned by an officer not below the rank of a Senior Magistrate Grade I (i.e. a trained lawyer) and two assessors, one of whom should be a senior social welfare worker and the other a person with professional experience in handling children, preferably in the area of child psychology and education. At the second level the Family Court will be established as a division of the High Court. This court will hear appeals from the court at the magisterial level and will have the power to try homicide cases and deal with other matters relating to children which are normally dealt with by the High Court, including presumably cases where children are currently tried jointly with adults. The Family Court is to exercise exclusive jurisdiction in any matter affecting children. Proceedings in the court are to be conducive to the best interests of the child and conducted in an atmosphere of understanding that allows the child to express himself and participate in the proceedings.
The Decree further provides that court personnel must receive the necessary training on a continuing basis, to promote and enhance the professional competence required of them.
The Juvenile Court is housed in a large airy room containing a few rows of benches and chairs. The court sits full time and handles different types of cases on different days of the week. Adoptions on Mondays. Criminal cases on Tuesdays and Thursdays. Family welfare cases on Wednesdays, and civil cases (i.e. children in need of care and protection and children beyond parental control) on Fridays. The magistrate reckons that he handles about 12 criminal cases a week. Records are however unavailable as his court clerk has difficulty in filling out the forms, and he doesn't have the time. The magistrate is a retired senior probation officer Two assessors have been appointed to the court but they are rather elderly and turn up irregularly. The magistrate does not think they are much use in criminal cases.
The magistrate always prefers to. release juveniles on bail in the custody of their parents even when they are accused of quite serious offences. He usually only remands-offenders to the Remand Home when their parents cannot be located. No formal pre-trial diversion procedures are in existence. However he often adjourns cases to encourage an out-of-court settlement. In Tunde's case, for instance, his parents are unwilling to pay the medical casts of the complainant's treatment, and so despite the magistrate's urging they have been unable to settle. He open strikes out cases for want of prosecution. He finds that often the complainant only wants to teach the child a lesson by reporting the matter to the police. Very few have the patience or persistence to attend court hearings to give evidence and even the investigating police officer often does not show up.
Where the charge against a child is proved, the magistrate most often resorts to probation orders, except when he finds that the home environment is not suitable, in which case he may order the offender's committal to an approved school. Where the offence is particularly serious he may order the offender's committal to the Borstal facility in Kaduna State. He usually relies on the recommendation contained in the social inquiry report, although where he feels that he has obtained enough background information in the course of the trial he may dispense with the report. He very rarely imposes a fine or corporal punishment. When he does resort to the latter intervention, he limits it to six strokes of the cane that are administered by his police orderly in his presence. Such punitive measures are usually combined with a probation order.
Before deciding how to deal with the juvenile offender the court must obtain such information as to his general conduct, home surroundings, school records and medical history as will enable it to deal with the case in the best interests of the child. For the purpose of obtaining such information the court may remand the child or young person on bail or to a place of detention. Almost invariably the court remands the child to a remand home.
Under section 15 of the CYPL, the court may dismiss the charge, discharge the offender on his entering into a recognizance, discharge the offender and place him under the supervision of a probation officer, commit the offender by means of a corrective order to the care of a relative or other fit person, send the offender by means of a corrective order to an approved institution, order the offender to be caned, order the offender to pay a fine, damages or costs, order the parent or guardian of the offender to pay a fine, damages or costs, order the parent or guardian of the offender to give security for his good behaviour, commit the offender to custody in a remand home, order him to be imprisoned (where the offender is a young person, i.e. above 14; children below 14 may not be imprisoned and "young persons" may only be imprisoned if there is no other suitable way of dealing with them), commit him to a borstal institution (where the offender is a young person; only one borstal institution has been established in Nigeria, in Kaduna State), deal with the case in any other manner in which it may be legally dealt with. (Children in need of care and protection or child beyond parental control may also be placed under a supervision order. Their parents may he required to enter into a recognizance to exercise proper care and guardianship or they may be repatriated to their home states, if they come from out of state.)
Probation orders are usually made for a period of two years. A corrective order to an approved school is invariably for a period of 3 years, as this is considered the minimum period necessary for vocational training and character reformation. Older children who have less than 3 years to go before they reach 18 years are either committed until their eighteenth birthday or are committed to the borstal facility in Kaduna where they may be detained until the age of 21 years. A Progress and Discharge Board meets periodically to review the progress of inmates and may recommend the release of an inmate before the expiration of a corrective order, but this rarely occurs. The Board may also recommend that an order be extended, especially when there are no identifiable relations into whose custody the child can be released.
In the Institute study, judicial officers were asked which disposition measures they most frequently resorted to and their responses are reflected in Table 1.
Table 1: Disposition methods most frequently resorted to in the experience of judicial officers
|
Judicial officers |
||
|
Number |
% |
|
|
Corporal punishment |
20 |
37.0 |
|
Caution/dismissal |
-- |
-- |
|
Probation/fine |
6 |
11.1 |
|
Prison |
10 |
18.5 |
|
Approved school/remand home |
14 |
25.9 |
|
Borstal |
3 |
5.6 |
|
Others |
1 |
1.9 |
|
Total |
54 |
100 |
It must be said that these responses need to be approached with some caution. It is surprising to say the least that none of the judicial officers mentioned dismissal as an option, although where records were available they showed that dismissal was quite frequently resorted to. In the Kano State juvenile court, for instance, 37% and 33% of all cases heard in 1988 and 1989, respectively, ended in termination, dismissal or discharge. What did appear. to be clear however was that half of the judicial officers interviewed reported that they most frequently resorted to the deprivation of liberty in one way or another, closely followed by the utilization of corporal punishment.
A child who had not attained the age of 18 at the time the offence was committed may not be sentenced to death, but is instead to be detained during the Governor's pleasure. Military tribunals do not feel bound by this rule since they are governed by their own special rules and procedures, There is often no right of appeal from such tribunals, and juveniles must depend on the Governor's exercise of the prerogative of mercy to commute the sentence. In such cases the sentence is usually commuted to life imprisonment, although in some rare cases the child may be released.
The Draft Children's Decree prohibits corporal punishment and imprisonment regardless of the age of the child. Where a child detained in an approved institution is found to be "incorrigible" or to be exercising a bad influence on the other inmates, he may be transferred to a special correctional centre. A child may be committed to various types of institutional facilities detailed in the next section and the Draft introduces several non-institutional intervention measures, including group counselling, community service, hospital or treatment orders and orders concerning foster care, guardianship, or (rather vaguely) orders concerning living in communities or other educational settings. It further specifically provides that the placement of children in an institution should be a disposition of last resort and should not be ordered unless there is no other way of dealing with the child.
While many of the intervention measures available to a juvenile court are non-custodial, the court has the power to commit a juvenile into custody. Where this measure is resorted to under the CYPL, a juvenile may be confined in a remand home, an approved institution, borstal or prison. Remand homes have been described earlier. An approved institution is any institution established or so declared by the Governor of a state for the purpose of taking into care juvenile offenders, children in need of care and protection or children beyond parental control. While a remand home is primarily a place of custody, an approved institution is required to provide an education to every inmate according to his age and development at least equivalent to that which the juvenile would have received were he attending school in the usual way of education.
There are two remand homes and three approved schools in Lagos State, namely:
Table 2 depicts the number of children in custody in remand homes and approved schools in Lagos State.
Table 2: Children in detention in Lagos State, January-June 1997
|
Remand home |
Approved schools |
Total |
|||
|
Criminal |
Beyond parental control |
Care and protection |
No categorization* |
||
|
Male |
16 |
11 |
17 |
30 |
74 |
|
Female |
7 |
1 |
18 |
27 |
53 |
|
Total |
23 |
12 |
35 |
57 |
127 |
* Children in approved schools are not categorized to avoid stigmatization.
Borstal institutions are specifically designated for the institutionalization of offenders between the ages of 16-21. However, the CYPL provides that young offenders may be committed to Borstals from the age of 14, as may children beyond parental control or in need of care and protection. (Strictly speaking, the legality of these provisions are in doubt. The CYPL is state legislation, while the Borstal Act is a federal enactment. In the event of any inconsistency federal legislation prevails.) In practice only the more serious juvenile offenders are committed to the Borstal. Only one Borstal facility for males has been established in the country, although there are several Borstal Remand Centres for those awaiting trial.
Children above the age of 14 may be committed to prison when it is determined that they cannot suitably be dealt with in other way. Where no remand home is conveniently located, a child may be detained in an approved institution or prison, and where a child awaiting trial is considered "unruly" or "depraved" he may also be detained in a prison despite the availability of a remand home. In all such cases the law provides that the child should not be allowed to associate with adult prisoners.
Lagos State is exceptional in the number of juvenile detention facilities it has established. Many states do not have remand homes and even fewer have approved schools. This means that even with the best of intentions many children are committed to prison custody. In the Institute study roughly two-fifths (41.9%) of the young offenders sampled were found in custody in remand homes, 18.5% in police stations, 16.8% in prisons, 14.8% in a Borstal facility, and 5.1% in approved schools. Out of a relevant sample size of 99 respondents in prison custody, 51.5% had not been kept separate from adult prisoners.
In the same study social workers were asked to describe the complaints usually received from children in respect of the different types of detention facilities. Their responses are detailed in Table 3.
Table 3: Complaints received by social welfare officers from juveniles in various detention facilities
|
Prison |
Remand home |
Approved school |
Borstal |
|||||
|
N |
% |
N |
% |
N |
% |
N |
% |
|
|
Inhuman treatment |
60 |
32.3 |
32 |
16.4 |
14 |
7.7 |
9 |
5.0 |
|
Hunger/no water |
15 |
8.1 |
33 |
16.9 |
22 |
12.2 |
24 |
13.3 |
|
Physical/sexual abuse |
1 |
0.5 |
9 |
4.6 |
2 |
1.1 |
6 |
3.3 |
|
Poor accommodation |
24 |
12.9 |
21 |
10.8 |
11 |
6.1 |
25 |
13.9 |
|
Several of above |
59 |
31.7 |
42 |
21.5 |
32 |
17.7 |
39 |
21.7 |
|
None of above |
27 |
14.5 |
58 |
29.7 |
100 |
55.2 |
77 |
42.8 |
|
Total |
186 |
100 |
195 |
100 |
181 |
100 |
180 |
100 |
The Table reveals that, in general, social workers receive more complaints about conditions in prisons and remand homes than in respect of approved schools and Borstal facilities.
When staff of custodial institutions (not including prisons) were asked in the Institute study how children are made to comply with institutional rules, 33% detailed measures such as persuasion or counselling, while 38.6% resorted to threats, denial of privileges, including denial of home leave, food and visitors, force or corporal punishment. When corporal punishment is utilized it is limited by the regulations to a maximum of six strokes of the cane; only the Warden can administer it, and the incident must be recorded. Other disciplinary procedures include physical drill, domestic labour and solitary confinement. All these measures are permitted b the regulations. It would also appear that in Lagos the children in an approved school may, as a disciplinary measure, be sent to a remand home for a period of confinement. This is usually resorted to when a child has absconded (and been recovered) or attempted to abscond from the school.
Every inmate has a right of access to the Visiting Committee for the institution which records and investigates complaints made by the inmates. The Visiting Committee, which is made up of retired social workers and members of the surrounding community, may interview inmates in the absence of staff. Many of these Committees are not active.
Adekunle, a 17-year-old male, was arrested two years ago for stealing. He appeared before the Juvenile Court and after the charge was proved was remanded to the Boys Remand Home during the preparation of his social inquiry report. He was in the Remand Home for eight months because the probation officer initially assigned to the case was suddenly transferred. He would probably have been placed on probation except that his parents wanted no part of him, and he was eventually committed to the Senior Boys Approved School until his eighteenth birthday.
The approved school, which was built in 1944, is located in a large compound which is so overgrown it looks abandoned. Many of the buildings appear to have been vandalized, and the children occupy a small section of the school that is still habitable. The school, which originally had a capacity for 200 inmates, has only 14 inmates on roll. It only admits children from the age of 12 years; younger ones are sent to the Junior Boys Approved School.
Adekunle does not like the approved school. He feels too big to mix with the younger ones who range between 12 and 14 years. He would like to work, but the rule of the school does not permit this. In the alternative he would like to learn the trade of sign writing. A trade-master in town is willing to engage him, but neither his parents nor the school can afford the N5,000 apprenticeship fee. The school is supposed to run a variety of vocational courses within the premises, but has an instructor only for the tailoring class. Industrial equipment which was once in place for the different courses has been stolen.
Adekunle occupies his time with farming in the school compound, and he is allowed to sell some of the produce. He also does a little bit of carpentry work with a private instructor who serves as a volunteer in the school in return for work space. For recreation he plays football with youngsters from the community who are allowed free access into the school premises. His father has come to visit a couple of times, and Adekunle has been allowed out on a home visit. He is bored and restless and has begun to leave the school compound without permission. A group of about five older boys with whom he used to associate have absconded.
The profile of Adekunle's detention indicates that Senior Boys Approved School is unable to provide a wide range of meaningful activities. The inmates of the Junior Boys School attend school within the community, while inmates of the Girls Approved School engage in a wider range of activities primarily because more NGO and community assistance seems to be directed there. Thus, the Girls School runs classes on fashion design, hairdressing, typing and (soon to be introduced) catering, as well as remedial literacy classes which are either manned by volunteers or by staff in the employ of voluntary agencies. However these piecemeal and often sketchy efforts fall far short of providing an organized programme of treatment and rehabilitation necessary to ensure that children benefit from their institutional experience.
The staffing situation of the schools is deplorable. There has been an embargo on the employment of new staff in the Lagos State Civil Service for several years in the course of which many experienced staff have retired without being replaced. Very few of die institutions visited had more than one experienced social worker backed up by a few support staff. This officer is responsible not only for the care and counselling of the inmates, but must also handle all administrative matters relating to the institution, liaise with NGOs and other voluntary agencies, attend hearings as well as staff meetings at headquarters, handle the marketing and oversee the activities of other staff. On those occasions when the social worker leaves the premises, the children are left in the care of support staff or community volunteers. While one or two of the social workers have excellent credentials, many are simply good natured and well-meaning; they may have a degree or diploma in the humanities, but lack any professional training, Little specialization in social work or probation work is evident, and workers are regularly transferred between the two cadres. In-house training programmes appear to have collapsed from lack of resources.
The funding situation is also poor. The government provides a stipend of N60 a day per child which is meant to cover all conceivable expences in relation to the child, including feeding, clothing, medical care, transportation and even maintenance of the premises. The subvention is paid irregularly and is sometimes several months in arrears. It is left to the ingenuity of the custodial staff to provide for the children in the interim. In one case, for instance, a Warden has obtained credit facilities from his church group, while another takes out personal loans to ensure that the children are provided for. Parents or guardians (when known) are required to make a contribution to the maintenance of a child in custody based on an assessment of financial ability. Most contribute N100-N200 per month. This amount does not go directly to the benefit of the child or the institution, but is paid into the government treasury. Thus, the allowance in respect of each child remains fixed and unchanged regardless of whatever contribution might have been made. Officers appeared to be unaware of a regulation that permits them to apply to a juvenile court for an order authorizing the payment of such contributions to the institution in which the child is maintained.
The approved schools maintain an open environment, and children may leave the premises on organized trips, to attend school or apprenticeship training, or to run errands. The Boys Schools encourage children from the community to engage in recreational activities with the inmates, but the Girls School appears to be more closely contained. Family visits are usually restricted to three-weekly intervals. While home visits and weekend leave are permitted, those children who have no families do not have the benefit of such family contact. The Draft Children's Decree proposes the appointment of a Visitor in such cases who would have the duty of visiting, advising and befriending a particular child in an institution.
To overcome some of the highlighted limitations the Draft Decree proposes that children may be committed to a variety of institutional facilities that are not necessarily established or managed by government. These include community homes which may be provided and managed by government or in some cans provided by government and managed by voluntary organizations. Children may also be committed to voluntary homes provided by voluntary organizations and registered with the government, in registered children's homes run by individuals or in ordinary educational institutions. A child offender in an institution must be given care, protection and all necessary assistance, including social, educational, vocational. psychological, medical and physical assistance, that he may require having regard to his age,, sex, personality and in the interest of his development. The government must satisfy itself that all privately run institutions satisfactorily safeguard and promote the welfare of the children committed therein, and for this purpose must appoint an Inspector to inspect the children and the premises from time to time.
A child who has attained the age of 15 and who is found to have committed a violent or sexual offence or an offence punishable in the case of an adult with 14 or more years of imprisonment will under the Draft Decree have a security requirement Imposed on his committal. A- child who has a recent history of absconding from custody and who is found to have committed an offence punishable by imprisonment may also have a security requirement imposed. In such cases the child will be confined in a closed section of a community home designed to restrict liberty. Youth correctional centres replace Borstal facilities for the institutionalization of young offenders between the age of 18-21. A youth who is found to be "incorrigible" or to be exercising a bad influence on other inmates may be detained in a special youth correctional centre.
The Draft Decree also provides for a semi-institutional arrangement whereby children may attend children's attendance centres on days prescribed by the court for training and instruction conducive to their reformation and resocialization.
It is evident from the study that, in almost every aspect of the juvenile justice system dealing with children in conflict with the law, from arrest until final disposition, the well-being, welfare and best interests of young offenders are not adequately preserved and protected. The reasons range from outdated legislation to poorly trained and insufficient personnel, inadequate facilities and lack of resources. While the important first step of legislative reform has been embarked upon, the other problems still loom large and need to be addressed if the reforms are to achieve a measure of success.
The allocation of resources to fund the infrastructural development and operations of the system is fundamental, but in a depressed economy cannot be adequately addressed solely by a government which is faced with a multitude of competing priorities. The Nigerian government, which was once adverse to any external involvement in the operation of the juvenile justice system, has now recognized that it cannot cope effectively and welcomes such interventions, thus creating the space for the formation of new partnerships.
In this respect different actors such as international agencies, local NGOs, community groups and volunteers have a vital role to play in providing various forms of assistance. These include advocacy for the introduction of the Children's Decree, the organization of training programmes for the different categories of personnel in the system, the provision of basic needs, training and educational facilities in custodial institutions and the establishment of networks of support for children involved in the juvenile justice system. Arousing the awareness of the community to the needs of the system is equally important, and the general public needs to be educated on the prevailing laws relating to children so that parents can adequately enforce the rights of their children.
It must also be recognized that the juvenile justice system cannot operate in a vacuum, and the limitations or absence of various support services in the general society must be taken into account. A policy of criminalizing acts such as hawking, begging or loitering, for instance, must be reexamined against the backdrop of the absence of a social security net or laws on compulsory education.