The Economist's Spotlight on the Problem of Pretrial Detention in Nigeria


Around the world, the misuse of pretrial detention, the time period defendants are incarcerated between arrest and trial) is massive. In Nigeria, Africa’s most populous country, the overuse of pretrial detention, most of it arbitrary and excessive, has reached “crushing proportions.” Of the 1,000 inmates in Nigeria’s Kiriki Maximum Security Prison, a total of 639 have not been convicted and are awaiting trial. Kayode Yukubu is among them. He was arrested in 2003.  After twelve years as Kiriki’s longest-serving inmate, no court trial date has yet been set for him.  He is among approximately 70 percent of Nigeria’s 56,785 pre-trial detainees who have not been sentenced, many of whom already have spent far longer time behind bars than the maximum period of the sentence for their alleged crimes. (Pretrial detention is intended to ensure an accused person will appear in court or pose a danger to others, not to punish or rehabilitate.)

The Economist spotlighted Nigeria’s pretrial detention with these figures last week (“Justice forgotten: The shocking number of pre-trial prisoners,” August 1, 2015, 45).  As enormous as the problem of pretrial detention is around the globe, much of it gets unnoticed.  But as the Economist article suggests, this may be changing because what gets measured gets attention, a maxim that has gained the status of received wisdom among many, perhaps most, of the international community.

While a spotlight on an enormous problem that is not uniquely a Nigerian one* does not guarantee solution, it’s a good start. A precise factual profile of its nature and scope is necessary to motivate and mobilize governments and the international community to do something about it. Such a precise factual profile of pretrial detention, however, should include not only figures such as the percentage of prisoners in pretrial detention, which are useful for general diagnosis but not for active performance management, but also what the Open Society Foundation’s president Christopher Stone, an international expert on criminal justice reform, referred to in a 2012 chapter as active indicators such as the length of pretrial detention.** 

Duration of pretrial custody, one of eleven performance measures of the International Framework of Court Excellence, is an actionable performance measure with the potential of having an outsized effect. It attracts the attention not only of justice system insiders (judges, prosecutors and defense attorneys, and law enforcement and corrections officials) but also of many groups and individuals in the private and non-profit sectors outside the formal justice systems who care about reducing crime, ensuring public safety, fighting poverty, reducing costs, making wise use of public resources, combating disease, promoting human rights, and making our legal systems more just.

Because duration of pretrial custody is clear, focused, and actionable, and because it is an easily understood indicator of an entrenched social problem, it is a potential rallying point for reform and improvement efforts that can bring government, citizens, groups, and organizations together in a solution economy. Justice institutions, social enterprises, and businesses can collaborate to reduce the average duration of pretrial custody, thereby creating efficiencies in court case processing that reduce the prison population and addressing a host of social problems.

Governments and their justice systems -- courts, prosecution and legal defense departments, ministries of justice, and law enforcement and corrections agencies -- could reap public trust and confidence simply by putting detailed data on pretrial custody into the public domain, making it available for real time feedback, and inviting social enterprises and businesses to join them in problem solving. They could, for example, collaborate with civil service organizations in identifying and examining the divergence between the mean and median number of days in pretrial custody among all criminal defendants. When the mean and median diverge, inflating or deflating the mean but not the median, it may be because relatively small groups of defendants (such as the poor and marginalized) are treated differently than the rest. The characteristics, treatment, and conditions (such as overcrowded and disease-ridden jails) of individuals with especially long pretrial prison stays (as well as especially short stays—which may occur among the rich, for example) could be examined for potential irregularities. So could these outliers’ experience with case processing and pretrial events, including factors related to the issuance of warrants, initial appearance and arraignment, charging practices, plea agreements, bail decision making, pretrial services, custody conditions, and alternative sentencing.  

What gets measured gets attention. And what gets attention by easy-to-understand, focused, and actionable performance measures might actually get done.

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* Worldwide, close to a third of prisoners are pretrial detainees, and in some parts of the world like Bangladesh, India, Library, and Paraguay in addition to Nigeria, the majority are pretrial detainees. For an excellent overview, see the Open Society’s Justice Initiative 2014 publication Presumption of Guilt: The Global Oversuse of Pretrial Detention.

** Stone, Christopher (2012). Problems of Power in the Design of Indicators of Safety and Justice in the Global South. In Kevin E. Davis, Angelina Fisher, Benedict Kingsbury, and Sally Engle Merry (eds.), Governance by Indicators: Global Power Through Quantification and Rankings. Oxford University Press.

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