NIGERIA AT 60: THE STATE OF ACCESS TO JUSTICE FOR DISPLACED PERSONS AND THE ROLE OF MOBILE COURT
Nigeria at 60, we cannot boast of an independent judiciary, unhindered access to justice, speedy justice administration. Can we still get it right? During an age such as ours, in which the justice system is under attack on many fronts, the last hope of the common man seems not to give hope again. The judiciary is bullied from every sector; access to justice seems to still be a mirage in some quarters. Can we still get it right? The state of human rights and living conditions of refugees and internally displaced persons has not improved over time. Over the past several years, much attention has been directed to the role and impact of the judiciary in the administration of justice in Nigeria. It is against this background that the writer intends to examine the state of access to justice for refugees and internally displaced persons in Nigeria and the role of the Mobile Court in enhancing access to justice.
The central aim of the law is the attainment of justice for everyone and in every human life. As such, the law cannot afford to be inert and static. As society keeps evolving, a coetaneous reassessment and improvement in the quality of our laws are pivotal. According to Edmund Burke, “Bad laws are the worst sort of tyranny. Henceforth, the laws regulating displaced persons who are vulnerable cannot be left out of regular and appropriate scrutiny and review. The true vitality of law and justice should always be evaluated in the context of their effectiveness in a common man’s world, hence quoting Giorgio Del Vecchio, “Without justice, life would not be possible, and even if it were, it would not be worth living….” Thus, laws regulating displaced persons should be framed to accommodate their vulnerable conditions.
Access to justice typically refers to the ability of persons to make full use of the existing legal processes designed, formally or informally, to protect their rights in accordance with substantive standards of fairness and justice.[1] This applies to every stage of the justice chain,[2] from rights awareness within civil society to conduct of law enforcement entities or from having a case heard in a court of law to seeking and obtaining an appropriate remedy.[3] The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is, therefore, critical.[4]
The International Bar Association (IBA) adopted access to justice as a comprehensive concept, which covers different stages of the process of obtaining a solution to civil or criminal justice problems. It starts with the existence of rights enshrined in laws and with awareness and understanding of such rights. It embraces access to dispute resolution mechanisms as part of justice institutions that are both formal (i.e., institutions established by the state) and informal (i.e., indigenous courts, councils of elders and similar traditional or religious authorities). The IBA concluded that effective access includes the availability of, and access to, counsel and representation, and it encompasses the ability of such mechanisms to provide fair, impartial and enforceable solutions.[5]
Displacement of persons has existed as far back as hostilities have occurred, but history has never known displacement problems of such magnitude as during the present century. For centuries, the world has experienced diverse forms of natural disasters like floods, drought and those caused by manmade factors like conflicts and wars. These factors have caused displacements and untold hardship to millions of victims who get caught in the situation. In some cases, the effects of the disaster are so perilous that large numbers of those affected have been forced to flee to different areas within the country or across national borders to stay as refugees or internally displaced persons[6].
The state of being a displaced person goes against all that human rights standards and norms stand for. It, in a way, rips off one’s inherent dignity and worth as a human being, placing him or her in a much-disadvantaged position that is far from the notion of equality of all human beings.
The International Red Cross Committee (ICRC) defines refugees as people who, because they are at risk or have been victims of persecution in their countries of origin, have crossed an international border.[7]The 1967 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa provides:
The term ‘refugee’ shall apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.[8]
The General Principles on Internal Displacement by the United Nations describes IDPs as:
Persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural, human-made disasters, or large scale development projects and who have not crossed an internationally recognized state border.[9]
IMPEDIMENTS TO ACCESS TO JUSTICE FOR DISPLACED PERSONS
Displaced persons are often met by a new justice system and laws, unlike those in their home countries and states they fled from. Ignorance of the law and of their rights becomes an impediment to the enjoyment of the rights. When people flee their homes and seek refuge in foreign countries, they become highly vulnerable to poverty and marginalization. This, in turn, limits their enjoyment of human rights, the right to access justice being chief among them.
True to its words, there is no such thing as a free meal; even access to justice in Nigeria comes at a price. For those who can afford it, it is available, and for those who cannot, the same is often delayed, denied, and worse buried. The inhibition which stares the displaced persons right in their eyes and rapes them of their legal right to access justice is the problem of poverty. Consequently, these displaced persons who are blocked from accessing justice are sometimes either forced to take justice into their own hands through illegal or violent means or to accept unjust settlements.
According to Justice C.A. Oputa (blessed memory), he said, “poverty is another modern form of slavery.” In the words of Eminent Jurist Aguda, he said:
What fair hearing can a poor person hope to hear when he cannot even boast of a square meal a day? If he is cheated of his right, he would certainly prefer to leave the matter in the hands of God than risk death through starvation as a result of investing all he and his family can boast of as total of their worldly possession in trying to assess an illusory right to fair hearing of his grievance by the courts. To think that a very poor person can have a meaningful hearing in court in the pursuit of his right, real or imaginary, is to live in a fool’s paradise.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) in its preamble provides that the Constitution is for the purpose of “promoting the good government and the welfare of all persons in our country on the principles of Freedom, Equality and Justice.” How do we promote the welfare of all persons, including the displaced persons in Nigeria, on the principles of ‘Freedom, Equality and Justice’ when the displaced persons cannot access the court because of the high cost of litigation coupled with delays in determination of cases occasioned by our laws?
Access to justice for displaced persons is also hampered by the long distances between the courts of law and the displaced settlements. Addressing the needs of access-to-justice of displaced persons before a trial court, there must be a deliberate effort towards their legal empowerment. Their disempowerment starts with language barriers, especially if they are unable to speak English, inadequate time and facilities to prepare their defence, not being informed promptly in the language that he/she understands and in details of the nature of the offence they committed, inability to secure legal representation and inability to perfect bail application as a result of lack of sureties. The high cost of legal representation is another barrier to accessing justice. As highlighted above, poverty is one of the factors that make displaced persons vulnerable. As they flee from persecution, natural disasters and insecurity in their home, they have no time to carry along their assets in the desperate attempt to remain alive. Thus, they lack the financial capacity to pay for legal representation in demanding their rights. The long distances from settlements to the urban areas also make it hard to access legal aid service providers situated far away from the settlements.
Furthermore, the non-appearance of displaced persons who are either parties or witnesses usually result in repeated court adjournments, delays in the execution of a speedy process. The displaced persons residing in camps have restricted movement, and as such, to exit the camp, they are required to obtain a pass, which takes time to be processed. This affects their prompt appearance in court. Many displaced persons, particularly those residing in host communities, are transient and lack a permanent fixed address. This creates challenges in serving court processes on them, thus hampers access to justice.
To address the impediments to access-to-justice of displaced persons in Nigeria, certain solutions should be embraced. Delay in the disposal of cases facilitates the people to raise eyebrows, sometimes genuinely, which, if not checked, may shake the confidence of the people in this judicial system. Hence, the need to adopt a mobile court system in displacement camps to fast track justice dispensation through their summary trial procedures. Also, as a solution to the long distances that displaced persons often have to travel to access formal courts of law, the mobile court system should be adopted in displacement settlement camps. Mobile courts are among the different types of justice providers the displaced persons can look to as they access justice. The Mobile Courts aim to bring proper judicial proceedings to remote areas through regular field visits to displacement sites. This system is provided by NGOs and the government, which, usually with international funding, facilitates the transport of state magistrates and lawyers to remote areas. State officials and NGO staff provide legal advice and training.
According to David and Turku, “studies have shown that mobile courts are the most effective means of reducing judicial delay and allowing more vulnerable populations to access the justice system in countries where courts are centralized in the capitals and remote areas are not well connected by roads.[10] Mobile courts have been used as a strategy to enhance justice in refugee camps. They were first introduced in 1998 in Kenya’s Dabaas and Kakuma Camps, where local magistrates would, in principle, visit every month to hear cases, and UNHCR would monitor the proceedings and provide material and advisory assistance to witnesses.
Mobile court connotes a special arrangement of the court which moves from place to place, as opposed to the court in the enclosed place, to adjudicate laws for the ulterior purpose of ensuring justice.[11] The Mobile Court created to save time and reduce legal and other expenses, go to the place of offence and provides justice speedily. Mobile Court is the best option today to get the lowest cost law services and fastest court judgment.[12] Mobile court disposes most of the cases summarily, and it is being headed by a magistrate. Since a Mobile Court is presided over by a Magistrate, the practice and procedure of Magistrates’ Court in that state shall certainly avail such a mobile Court.
Mobile courts serve a very critical function in terms of enhancing public legitimacy, confidence and trust in the integrity and delivery of justice. It is the duty of mobile courts to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context.[13]
In 2007, Yogesh Kumar Sabharwal, Chief Justice of India, said, “People generally go to courts to get justice, but today with mobile courts, the courts will come to the people.” Unlike the ordinary courts, mobile courts move to the place of occurrence with a complete remedial package such as the magistrate, prosecution, police, etc. The accused, subject to his confession of guilt, can be brought to justice within a few hours.[14] This innovation greatly revolutionizes the quality of judicial services within a limited scale, and it makes everyone better off- the magistrates who are overburdened with cases, the prosecutors and the masses. Mobile Courts strengthen the role of the formal justice system in remote areas, the presence of justice institutions where there has never been any before.
The non-appearance of displaced persons who are either parties or witnesses in court as a result of long-distance to courts which usually result in repeated court adjournments, delay in execution of the speedy process can be remedied with the establishment of mobile courts in displacement settlement camps.
The mobile court creates a revolutionary change to enforce laws in the country by arranging on-spot and prompt judgment, which rejuvenates the trust among the citizens towards the judiciary. The On-spot trial procedure under mobile court is primarily meant to stop the rampant violation of law by a huge number of perpetrators in an area. It is an effective tool for curbing down offences and, thereby, helping law enforcement agencies to maintain law and order in society. Awarding punishment on the spot imparts a good vibe in people’s minds as it gives them an idea of a proactive administration, and they can witness the proceeding publicly.
If the criminal courts are to contribute to a reduction in crime, it will not be by stuffing more people into already overcrowded prisons and jails; thus, mobile courts in Nigeria in line with the sentence restrictions imposed on them resort to imposition of fines and community service. Under the ACJA, the court, in exercising its powers to sentence the convict, shall have regard to the need to (a) reduce congestion in prisons; (b) rehabilitate prisoners by making them undertake productive work; (c) prevent convicts who commit simple offences from mixing with hardened criminals.[15]
Hence, the resort to imposition of fines and community service has given justice a human face, and the impact of this community service as a sentence helps ameliorate the trauma these displaced persons are passing through already and helps decongest our prisons.
Considering the financial implications needed to access justice in Nigeria, there is a need for the legal aid council to sit up to its roles and obligations as imposed on it by the Legal Aid Act. Furthermore, this is the moment NGOs and the public interest wing of the Nigerian Bar Association should provide effective result based support for displaced persons in accessing justice.
It is the recommendation of the writer that aside from the establishment of the mobile court in camps, there is a need to promote ADR as an alternative method of settling disputes considering its advantages over litigation; amend some of our laws to exempt displaced persons from paying legal fees; and provide training to judges, magistrates and all in the justice sector on international standards of displaced persons.
Author
Chidera Nwokeke
nwokekechidera@gmail.com; +2348120945787
[1] United Nations Development Programme (UNDP), Programming for justice: Access for all (2005), p.5.
[2] The “justice chain” is “the series of steps that a woman has to take to access the formal justice system, or to claim her rights.” UN Women, Progress of the World’s Women: In pursuit of Justice (2011), P.11.
[3] UNDP, Programming for Justice: Access for All (n.1), p.5.
[4] B. McLachlin, “Justice in our courts and the challenges we face”, address to the Empire Club Canada, 8 March 2007, p.3. Available from www.cfcj-fcjc.org/sites/default/files/docs/2007/mclachlin-empireclub-en.pdf (accessed 30 September 2020
[5] J Beqiraj and L McNamara, International Access to Justice: Barriers and Solutions (Bingham Centre for the Rule of Law Report 02/2014), International Bar Association, October 2014.
[6] UNHCR (2012) “Protecting refugees and the role of UNHCR” United Nations High Commission for refugees 4
[7] ICRC ‘Refugees and displaced persons protected under the international humanitarian law’ available at: <http://www.icrc.org/eng/war-and-law/protected-persons/refugees-displaced-persons/overvie-displaced-protected.htm> accessed: 29th September 2020
[8] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa Art. 1.1 and Art. 1.2
[9] Guiding Principles on Internal Displacement, 22 July 1998, OCHA/IDP/2004/01, Introduction Art. 2 <www.unhcr.org/43ce1cff2.html> accessed 29th September 2020
[10] D. William and H. Turku, Access to Justice and Alternative dispute resolution: Journal of dispute resolution 1 [4]: 47-65
[11] Gazi Delwar Hosen and Syed Robayet Ferdous, ‘The Role of Mobile Courts in the Enforcement of Laws in Bangledesh’ The Northern University Journal of Law (2010) Vol 1 82-95
[12] Monica Rispo, ‘Evaluation of UNDP’S Support to Mobile Courts in Sierra Leone, Democratic Republic of Congo and Somalia’, (2014) New York, UNDP Bureau for Crisis Prevention and Recovery Pg 1 Fn 1.
[13] Alioke v Oye & Ors (2018) LPELR-45153 (SC)
[14] Sohel Rana, ‘Mobile Courts can make a difference’, The Daily Star Newspaper opinion of March1, 2017 available online at https://www.thedailystar.net/perspective/mobile-courts-can-make-difference-1368808 accessed on 11th October, 2020
[15] Section 460 (2)(3) Administration of Criminal Justice Act, 2015